Obesity as a disability
We have an employee has a poor sickness record and has been absent from work due to various conditions including asthma, depression, a bad back and chronic fatigue syndrome. The main cause of these conditions is his obesity. He is ‘at least’ 20 stone.
This employee is currently off sick and has been absent since the start of the year. There does not appear to be an obvious physical or mental cause for his conditions. We cannot continue to support this employee’s level of sick absence. We had him in for a meeting and he said we could do nothing because he is ‘disabled’ but I told him that obesity is not covered by the discrimination legislation and we would make a decision soon.
You are right that it was never intended that obesity should be covered by discrimination legislation. Under the Equality Act 2010, a person has a disability for discrimination purposes if they have a “physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities”.
If you dismiss your employee for sickness absence a Tribunal is likely to say that the cause of the symptoms is irrelevant and focus on the effect of being obese. This will make it more likely that he has impairments within the meaning of the legislation and therefore able to bring a disability discrimination claim. The fact that these conditions are caused by his obesity is irrelevant.
You may avoid liability for discrimination if you can show that the dismissal was not because of the ill-health itself but because of genuine and compelling business reasons. You should, therefore consider whether any reasonable adjustments can be made to assist this employee in returning to work.
Your next step should be to obtain a medical assessment by an Occupational Health adviser (not his GP) to help you decide:
• whether he is in fact disabled
• what the prognosis is about a possible return to work
• what reasonable adjustments they suggest that you can make.
You are entitled to expect that a part of the adjustments is that the employee agrees to takes positive steps to help address his obesity through a weight loss programme possibly supervised by an OH Adviser.
Adjustments only need to be reasonable and you are allowed to dismiss fairly on the grounds of capability if you have followed a thorough and fair process.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for specific advice
