Taking obesity into account

The week before Christmas 2014, the European Court of Justice (“ECJ”) ruled that obesity can be considered a disability, bringing the impact of obesity in the workplace sharply into the spotlight. The decision could change the way employers in Europe treat overweight staff.

Somehow ironically coinciding with the Christmas break when overeating is actively encouraged and when the most popular form of exercise is couch surfing, the decision was largely commented on social media as yet another EU measure making life more difficult for employers and many blogs voiced the opinion that obesity is a self-inflicted state and as such should not attract the protection of the law.

So, post the Christmas hangover, what exactly does the ECJ’s decision mean for employers?

Obesity may be a disability

Employers can take note that obesity in itself is not a disability. However, following the ruling, it is clear that obesity could be considered to be a disability if it caused physical, mental or psychological problems that hampered a person’s ability to participate in work. The ECJ has purposely made no reference in its decision to the level of an individual’s Body Mass Index (BMI) in assessing whether their obesity renders them disabled. It had been previously recommended by the Advocate General that a BMI of over 40 would be likely to mean that an individual was disabled. The consequence is that each case will need to be assessed on its own merits.

The ECJ has held:

  • There is no general stand-alone protection against discrimination on grounds of obesity in European law;
  • however, the degree of an individual’s obesity, together with its impact on an individual’s working life may bring that individual within the existing protection against discrimination on grounds of a disability;
  • the cause of the obesity, including the fact that it may be self-inflicted, is irrelevant. It is the impact of the obesity which is important in determining whether disability discrimination protection applies.

The case brought to the ECJ concerned Mr Kaltoff, an employee of the municipality of Billund in Denmark who argued that he was dismissed because he was obese. Mr Kaltoff had a BMI of 54. He had been obese for the 15 years of his employment with the municipality of Billund where he worked as a childminder. His employment was terminated by the municipality on the ground of redundancy.

In the UK, the ECJ’s decision is consistent with the recent decision of the Employment Appeal Tribunal (EAT) in Walker v Sita Information Networking Computing Limited (UKEAT/009/12). The EAT held in that case that obesity does not of itself render a claimant disabled. However, the effects of obesity might make it more likely that a claimant has an impairment that has a substantial and long term effect on his/her ability to carry out normal day to day activities (for examples diabetes or mobility problems). If an obese individual satisfies the definition of disabled within the meaning of the Equality Act, then such an individual will have the right not to be treated less favourably because of their weight and the duty to make reasonable adjustments will apply to protect such employees and/or prospective employees.

No discriminatory treatment

Employers in the UK would be prudent to review their policies as to how they treat overweight staff and should:

  • Take care not to treat an obese employee’s circumstances as having less merit than other disabled employees, based on the belief (rightly or wrongly) that they are the employee’s fault.
  • Consider whether or not any reasonable adjustments should be made. These might include employers having to provide bigger chairs and desks, car parking spaces near the front door and duties involving less mobility.
  • Be aware that these potential adjustments all bring with them the threat of associated employee relations issues from other members of the workforce who in turn feel they are being unfairly treated. The risk of harassment and bullying of an obese employee may be high and could well include managers who should receive guidance on the issues they should have under consideration when dealing with an obese worker and handling any related issues.
  • Take care not to discriminate in any recruitment, promotion, sickness absence or dismissal process.

In the UK, it is worth noting that the decision comes at a time where the Government is launching the new Fit for Work Service which aims to speed an employee’s return to work after sickness absence. Employers should also note that as of 1 January 2015, a new tax exemption has come into force for employers who fund recommended medical treatments of up to £500 per employee per year. The medical treatment must be aimed at helping an employee return to work after a period of absence due to injury or ill health but it is easy to see that it could include treatment to tackle obesity recommended by a qualifying health care professional. Whilst there is no obligation on an employer to fund the treatment, the benefits of getting an individual back into work may well increase the pressure on an employer to accept recommendations in this respect.

Effects of obesity in the workplace

The World Health Organisation ranks obesity into 3 classes by reference to Body Mass Index (BMI). Those with a BMI of 25 and over are overweight, those with a BMI in excess of 30 are obese and those with a BMI in excess of 40 have severe, extreme or morbid obesity.

According to the latest Department of Health statistics, almost one in four UK adults is obese. Research has shown that those individuals have greater health risks and obesity is associated with substantially increased rates of absenteeism (i.e. more days out of work) and presenteeism (i.e. reduced productivity while at work). Sleeping problems brought on by the condition can leave employees feeling tired. That can lead to lower levels of productivity and increased injury risks, particularly if their jobs require them to drive or operate machinery. In some circumstances, obesity combined with an associated health condition may result in an employee not being able to do their job fully.

So how can employers tackle obesity in the workplace?

Employers are encouraged to include healthy eating and exercise as part of an overall workplace wellness initiative. Promoting wellness in the workplace is not new and some larger workplaces have already seen the benefits of implementing a wellbeing policy and promoting a healthy work-life balance – but many smaller businesses have yet to embrace the ‘wellness’ concept. As part of a wellness policy, managers may extend support to workers who are actively trying to reduce their weight.

As part of a wellness programme at work, employers may wish to encourage:

  • Exercise initiatives. For instance, make it easier for employers to cycle to work by offering safe places for bike parking. Also, ask local gyms to offer discounted memberships to employees. Encourage employees to use pedometers (widely available as smartphone apps), as a way to motivate themselves to take more steps every day. Employers could set a challenge to employees to take 10,000 steps every day, and find a way to create some friendly competition to see who can walk the most steps in a week.
  • Encourage people to take a full lunch break. Too many employees sit at their desks and work through lunch. Encourage workers to take a full break, and offer opportunities for walking or yoga sessions during the lunch hour.
  • “Biggest Loser” challenges. Some employees enjoy challenging each other to lose weight within a concentrated period of time and employers can support such a weight loss contest, for instance giving a prize of say £25 to the top three “losers,” or those who lose the largest percentage of their body weight in six weeks.
  • Sponsor a sporting event, such as a walk or a run for charity.

There are many initiatives that employers can support to encourage wellness and weight loss at work. Employers can also stop buying sugary treats for the office like biscuits and chocolate. Companies that prioritize employee wellness can improve retention and cut costs associated with absenteeism.

Employers may also wish to examine whether current work environments actually encourage obesity. Job stress, shift work and long work hours can all be factors in raising obesity. Employers can look at how such work patterns may be modified to enhance their employees’ well-being.

Unfortunately, it is well known that it is often difficult for obese employees to maintain a permanent weight loss. This may mean that an employee may feel stigmatised for not having achieved/maintained weight loss where he knew this was what his employer was looking for him to achieve.

The ECJ’s decision is an acknowledgment that obesity has become a societal issue and that the workplace has its part to play in tackling obesity. However, the burden cannot rest just with the employer. If obesity is to be taken into account, a systematic structural approach to obesity management needs to be put in place along with workplace education, dietary consultations and other standard approaches to lifestyle changes. Society needs to address the ticking time bomb of obesity in much the same way it did smoking – so as to ‘nudge’ people in directions that will make their lives go better, without eliminating freedom of choice. Just as banning cigarettes from sale would never have been accepted by the population, it is most unlikely that compulsory weight watchers attendance and calorie rationing would not be successful at tackling obesity, let alone be acceptable means of doing so in a democratic society!

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© Miller Rosenfalck LLP, February 2015

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Emmanuelle Ries

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