How do you deal with a weighty dilemma?
What is it acceptable to ask your employees?
This week it was reported that DVLA staff based in Swansea Headquarters have been asked to disclose their waist size as part of a “points based” risk assessment, to decide who is healthy enough to return to work.
Whilst not requiring specific weight or measurements, but to opt between a range – 34 inches for women and 40 inches for men, the Organisation has been condemned by a Union as” demeaning and insulting to staff’, which begs the wider question - could such requests be deemed to be potentially unlawful discrimination?
There is no specific law prohibiting discriminating against an employee who is overweight/obese. The reality is however that an employee suffering from a related or underlying physical or mental long-term health condition which has a substantial impact on their normal day to day activities (for example depression, diabetes, respiratory problems etc) is likely to be deemed disabled and therefore protected from disability discrimination - obesity however is not a disability in its own right.
Is there a protected weight?
There is no specific BMI which automatically deems an employee disabled, this is judged on a case by case basis. However, the ECJ has indicated that having a BMI of 30 or more could be considered a disability if it impacts an employee’s ability to work.
Which begs the question - what if this is self-inflicted? This opens up a very large can of worms as many employers/ co-workers will find it hard to accept that someone whose condition is potentially within their control because of diet/ lifestyle has a protected disability, as does someone whose condition is caused by something beyond their control because of illness, genetics or accident.
The fact is employers cannot argue this to defend against their legal obligations. The ECJ held that its irrelevant - it’s the impact of the condition now, not its origin.
What should I do as an employer?
There are multiple considerations as an employer right now as we navigate through an ever-shifting landscape.
Employers should be mindful of their Dignity at Work/ Data Protection policies and training to ensure that their managers understand for what reason information is being requested from individuals. In line with GDPR, is there a “legitimate reason” for requesting the individual data? How will it be used? Who has access to the information?
In this case, I imagine that the Organisation in question is seeking to rely on the fact that the information is required to undertake a Health & Safety Risk Assessment and that individuals will be in categories of data and not singularly identifiable by providing a range of measurements.
It is not an issue that employers can afford to treat lightly and certainly moving forwards careful and sensitive communication will be key to employees’ understanding as to why they are being requested to provide such personal information and how it will be used.
For a free no strings, confidential initial half hour conversation on how we can help you to conduct Health and Safety Risk Assessments in your business without risking unlawful discrimination please get in touch by calling us on 01792 296 178, email me on firstname.lastname@example.org or visit our website here to book a call back. You can also sign up to our very popular newsletter “The People’ – all the latest HR news, views, offers and even the occasional giveaway!
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