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Disability discrimination: what business leaders should know

Beverley Sunderland

A survey last month (April) by Crossland Employment Solicitors found that nearly half (45%) of the 1,000 British employers questioned are less inclined to recruit an applicant at interview stage if they are obese. Why? Because they're worried about costs to accommodate any debilitating side effects or the risk of a disability discrimination claim. But this prejudice attitude could land many in hot water. Beverley Sunderland explains the findings and ways to avoid a discriminatory attitude towards obese workers so companies can reap the rewards of a diverse workforce

When faced with a potential new hire, it's important to judge that person because of their qualifications, experience and skills and not based on assumptions from their appearance. It may sound like a common sense approach but our recent survey on recruitment attitudes towards obese workers proved that employers are still judging a book by its cover.

Over 60% are reluctant to hire an obese person because of the potential cost to the business to make adjustments for any side effects of being overweight and a fear of being taken to court if the disability needs of obese workers aren't met. They are assuming that the person's weight may lead to health issues and disabilities that the business will need to accommodate and, if they don't, then they could be liable on grounds of discrimination.

Then there is the 26% of employers who are less inclined to recruit overweight staff because of their lack of awareness of the laws around employing obese workers.

As our survey shows, confusion and caution still prevails over the laws around hiring overweight workers. Such concern has also likely to have heightened following the high profile case December last year of the obese childminder in Denmark, Mr Kaltoft, which over half our respondents were aware of.

Mr Kaltoft went to the European Court of Justice (ECJ) after being made redundant to persuade them that there could be discrimination on the grounds that someone was obese; he suspected his redundancy was because of his size after comments about his weight.

The ECJ decided that there is not discrimination on the grounds of obesity but if obesity causes long term, physical or psychological limitations that “plainly hinder full participation in professional life on an equal footing with other employees”, it may amount to a disability.

Obesity and disability

Under UK law, an employee or potential new hire is classed as disabled if they suffer from a condition which is a physical or mental impairment lasting or is likely to last for more than 12 months and has a substantial and adverse effect on the person’s ability to carry out day-to-day activities.

Therefore, if someone falls under this description due to the side effects of being overweight, then they can be classified as disabled. In other words, being obese does not automatically mean you are disabled and employers do not automatically have to make ‘reasonable adjustments’ based on being obese alone; despite the inaccurate news reports around the Mr Kaltoft case of employers now needing to accommodate obese employees with bigger cars, parking spaces by the door and upgrades on flights for wider seats.

Avoiding the stereotypical assumptions

So, what should employers do so they can benefit from a diverse workforce without the threat of a discrimination claim? The most important thing is not to make stereotypical assumptions about obese candidates and assume that they will have health issues that will prevent them doing the job as required.

This applies to both existing employees, or people applying for a job. Half of those we questioned did not know that if a candidate tells them about their medical condition in the interview and they do not get the job, they may be considered disabled and may succeed in a claim for disability discrimination.

Employers should pick the candidate based on having the right qualifications for the role, always ask all candidates the same questions at interview, keep notes (and never be tempted to write something flippant – they are disclosable documents under the Data Protection Act)  and make sure any decision can be justified based on the job description and the relative experience of all of the candidates.

In most cases you can't ask the candidate or employee if they have any ill health nor is the interviewee or employee obliged to disclose such information. However, if a candidate mentions health issues then this may indicate a disability and an employer should understand its obligations to make reasonable adjustments to alleviate any disadvantage.

Employers should not go to existing employees who are obese and ask them if they require any adjustments in the workplace, this will lead to offence and possible constructive dismissal claims. Instead, ensure that the equal opportunities policy puts an onus on the employee to raise this if needs be.

Disability discrimination is complicated and the ECJ decision has cast further doubt and uncertainty over hiring obese workers. However, a reluctance to hire overweight workers based on a lack of understanding around the law means many are missing out on a pool of potential talent for their business. The key is to always treat everyone equally and fairly and, that way, you will avoid the risk for grounds of any sort of discrimination claim.

Beverley Sunderland is Managing Director of employment law specialists, Crossland Employment Solicitors


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