Dismissal because of obesity a real problem

An overweight police officer. Picture: Getty Images

THE Commissioner of the Metropolitan Police, Sir Bernard Hogan-Howe, was recently interviewed by the Radio Times. He was asked about ‘unfit’ officers. He said that they must ‘shape up’ otherwise “…If they don’t, then we haven’t got a job for them. I think you’ve got a duty to your colleagues.”

He added: “If they [their colleagues/members of the public] shout for help, they want fit people to come. They don’t want somebody waddling down the road who’s never going to arrive, and when they get there, they’re out of breath.”

Sir Bernard also suggested that the standard of an annual fitness test officers must complete was too low.

He is legitimately concerned about the standard of fitness of police officers. If it is his view that the current annual test is not [forgive the pun] ‘fit for purpose’ then it must be right for him to highlight this and take steps to toughen the test.

However, any changes Sir Bernard may wish to make to the annual fitness test could be subject of legal challenge under the Equality Act 2010 – particularly the provisions relating to disability discrimination.

Sir Bernard’s comments relate to being unfit rather than overweight. But the two will often go hand in hand. So is being overweight actually a disability, and thereby a protected characteristic? In short, yes it can be. In 2014 the European Courts ruled that ‘fatness’ can constitute a disability for the purposes of EU equality at work legislation, if the employee’s obesity hinders their full participation in professional life.

The Equality Act makes it unlawful to indirectly discriminate against a person by applying a provision, criterion or practice (‘PCP’) which is discriminatory in relation to a relevant protected characteristic ie the PCP puts those with a relevant protected characteristic at a particular disadvantage; and the PCP cannot be objectively justified.

The Equality Act also imposes a duty on an employer to make reasonable adjustments in relation to disabled team members.

What this means for employers is that dismissing someone without having first considered if adjustments can be made to help them to do their job could land them in hot water. A dismissal based on a failure to pass a fitness test for example would have to be carefully justified, and only implemented after consideration to adjustments had been made if the employee is disabled.

Of course, this is not just an issue for the police force – it is relevant for all employers. But the tension between the requirement to make adjustments for an obese person and the need for physical fitness is probably most acutely felt in professions like the police, emergency services, construction and other ‘physical’ professions.

So what reasonable adjustments may be expected for obese workers? That could be providing them with larger seats, special parking spaces and other facilities but also perhaps additional rest breaks if an employee had difficulty standing for long periods of time. It should become clearer as the case law develops what is considered to be ‘reasonable’.

In some cases it may simply be the case that an employee cannot do the job in question due to their physical limitations despite any adjustments. In those cases employers may well be justified in terminating the employment once they have followed their internal procedures – which Sir Bernard may be glad to hear.

There are a couple of reasons many employers have been concerned by the case law developments on obesity.

Firstly, the scale of the issue is daunting. Approximately a quarter of the UK population are obese according to WHO standards. That is a large number of employees who may be covered by the Act. And although many of these individuals may not be sufficiently obese to need adjustments to their job, they may benefit from protections such as the right not to be harassed based on their disability.

Secondly, some employers consider that it is a little unfair to treat obesity as a disability. In some cases the employee may have contributed to the problem. This notion is recognised elsewhere in the Equality Act. Addictions are specifically exempt from protection. Yet an employer may have to incur expense in making adjustments to accommodate an obese member of staff.

• Elaine McIlroy is a Glasgow partner and employment law specialist at Weightmans (Scotland) LLP. www.weightmans.com