According to the ‘Global Burden of Disease’ study, published in the Lancet medical journal, the UK is among the worst nations in western Europe for levels of overweight and obese people. Indeed, 67% of men and 57% of women are either overweight or obese.
It follows that employers should be concerned about a recent European Court of Justice ruling, in the case of Karsten Kaltoft Case C-354/13. This case has determined that obesity can constitute a disability in circumstances where it hinders the full and effective participation of the claimant in professional life and on an equal basis with other workers.
The big question therefore is what impact could this ECJ obesity decision have in the UK workplace? Certainly, if the workplace is in the public sector, then all public sector employers are directly bound by the courts decision. This means that public sector employers must directly comply with the ruling of the ECJ.
So far as private sector companies are concerned, there is an argument that the decision of the ECJ is not immediately binding on private sector companies. Such an opinion is because of the fact that employees could bring a Francovich claim against the state for them failing to fully implement a directive (therefore seeking compensation from the state rather than the private sector employer). That being said, in the case of Walker v Sita Information Networking Computing Ltd an Employment Appeal Tribunal ruled that obesity was not in itself a disability, but that any resulting conditions or side-effects could be classified in that way. It follows that private sector employers must now see the writing on the wall, and be prepared to consider obese employees as potential disability discrimination claimants. In the Northern Ireland Industrial Tribunal case of Bickerstaff v Butcher the tribunal found that a worker’s obesity was eligible for disability protection.
Need to make ‘reasonable adjustments’.
What this means is that employers are advised to make ‘reasonable adjustments’ if they have staff who are obese and they are, as a result, struggling in their professional work when compared to other workers. By way of example, if there is a health and safety footwear requirement for staff on the shop floor. The employer may need to have footwear specially made for obese staff. If an employer refused to do this, and effectively prevented an employee from working because they are not able to wear the regulatory footwear – the employer could find that s/he is the subject of a disability discrimination claim.
Logically, it is in the interests of employers to encourage staff to keep healthy and below ‘Obese’ on the Body Mass Index calculator. Indeed, if all staff were healthy and not subject to obesity or overweight problems it should reduce the sickness leave. This would be financially valuable to employers, and employees alike. It follows that it may be in the interests of employers to offer ‘Good Health Incentives’ to encourage staff to control their weight via dieting, fitness methods etc.
Employers could offer ‘Good health incentives’.
In the USA many employers now provide fitness centres and slimming clubs at work places. They encourage healthy eating in canteens – by a colour code labeling system that signifies low fat and unhealthy product lines – with a discount for healthy items purchased. Indeed, many employers now give financial incentives, in wage packets, that are designed to encourage weight loss and control. For example: Would $1,700 a year motivate you to drop a few pounds? There is no doubt that the surge for this healthy lifestyle approach in the USA is driven by the Obama Affordable Care Act and requirements for employees and employers to pay for health insurance – with lower insurance costs a driving force.
While it may be reasonable to see such USA company approaches as being restricted to the US. It is important to recognise that in the UK the NHS is encouraging companies to give cash incentives to employees who lose weight and maintain a healthy lifestyle. They are also set to introduce incentives for their own staff to lose weight.
It is certainly possible that the obesity decision of the European Court of Justice will lead to employers feeling motivated into encouraging workers to lose some weight and maintain a healthy lifestyle.
If we look in the mirror, or around the staff room, we may recognise the need for such an approach.
Dr Peter Jepson