As a nation, we are getting bigger: 24% of the population is currently obese [Statistics on obesity, physical activity and diet – England, 2014, Health and Social Care Information Centre, February 2014] and NHS costs for dealing with obesity are estimated at £5 billion a year [Reducing obesity and improving diet policy, Department of Health, March 2013].
Obesity and its consequences often affect work performance and productivity.
In this context, employers need to understand the implications of a recent preliminary EU decision, which found that severe, extreme or morbid obesity could amount to a disability if it hinders a worker from full and effective participation in professional life on an equal basis with other workers.
If the decision is endorsed by the European Court of Justice, which is likely, UK employers will have to comply with various disability discrimination duties in relation to their morbidly obese employees and job applicants whose obesity affects participation in working life.
In terms of benefits offerings, employers will not be allowed to exclude employee participation in certain benefits, such as private medical insurance schemes, group income protection or group life assurance because it is more costly or complex to insure an obese individual.
Employers will have to make, and pay for, reasonable adjustments to the workplace’s physical features or practices, and may be expected to provide ’lifestyle’ benefits, which might include specific work equipment (for example, rising desks or supportive chairs), access to private counselling or reasonable time off work to support weight-management practices.
Employers may have to adjust flexible benefits packages to include offerings that support obese workers, such as reduced-cost gym memberships or health screenings.
But, employers’ duties are not limitless. They are unlikely to have to provide a paid-for carer for employees at work, or ameliorate disabled employees’ sickness absence and pay rights.
And if, after an employer has made reasonable adjustments, the employee is still unable to perform his or her job satisfactorily, an employer will be allowed to lawfully manage an exit strategy.
Jillian Naylor is employment and incentives partner at Linklaters