Today - 25 May 2018 - is GDPR (the General Data Protection Regulation)...
Employers' Attitude to Obese Candidates
Prejudiced attitude towards hiring obese workers rife among British employers - study reveals.
In December 2014, in the case of the obese childminder in Denmark, Mr Kaltoft, the European Court of Justice (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 a an equal footing with other employees”, it may amount to a disability.
However, the reporting of this case in the media in the UK might have led an employer to believe that any candidate or employee who was obese was automatically disabled. But this was not what the ECJ decision said, an employer cannot discriminate against a candidate or employee simply because they are obese.
It is only if the knock on effect of the obesity is a physical or mental impairment which has lasted or is likely to last for more than 12 months and has a substantial and adverse effect on the candidate’s ability to carry out day to day activities, would a candidate or employee be considered disabled and have the protection of the law.
To test the effect of this case and whether employers were aware of it and whether attitudes had changed as a result, we commissioned an independent survey of 1000 employers with recruiting responsibilities. This took place between 20 January 2015 and 6 February 2015.
Four questions were asked:
- Are you aware of the recent ruling by The European Court of Justice which has confirmed that obesity may be considered a disability if it causes a physical, mental or psychological impairment which may hinder the full and effective participation in professional life on an equal basis with other workers and is long term (lasting for or likely to last for twelve months or longer)?
- Since this ruling on obesity, do you feel less inclined to recruit a new employee at interview stage if they are obese?
- If yes, what are the reasons for this?
- Did you know that if an obese person tells you about their long term conditions at interview and you do not employ them then they could claim disability discrimination?
The survey found that on average nearly half (45%) of British employers are less inclined to recruit an applicant at interview stage if they are obese, although there were interesting geographical variations, with the East Midlands coming in at 29% and Scotland at 27%.
This divide reflects national obesity figures, with the highest percentage of adults classified as obese in Scotland - 27.1 % - and a high prevalence in the north of England and Midlands. London and the South of England has the lowest obesity prevalence rates, 9.2 % and 9.7 % according to Statistics on Obesity, Physical Activity and Diet, England 2014, Health and Social Care Information Centre.
More than half of the employers questioned were aware of the ECJ decision in the Kaltoft case but the biggest reason for being less inclined to recruit obese workers is fear of future action on grounds of discrimination if the company does not accommodate the side effects of being overweight
Some of comments made in the ‘free text’ of the survey indicated that perhaps there was more to employer’s views than simply a concern about litigation:
"Obese workers are unable to play a full role in the business,”
"They wouldn't be able to do the job required"
“I feel that obese people don't care much about themselves, so why would they care about my business”
This seems to suggest that employers believe that those who are obese are that size through choice. But often those who are overweight are not that size through choice: they may have medical conditions, a lack of understanding on how to lose weight and lack of diet knowledge. Whilst many of us are lucky to be able to afford fresh food and have the time and knowledge to cook it, it would be an assumption that this applied to all UK employees.
An average of 61% of employers worry about the potential costs to the business to accommodate the side effects of overweight staff. 63% also cited a fear of being taken to tribunal on grounds of discrimination if the disability needs of obese workers aren't met.
Whilst, just over a quarter (26%) are less inclined to hire obese people due to a lack of awareness of the laws around employing obese workers.
Yet, this lack of understanding of the law and prejudiced attitude could land many employers in difficulties. Over half (51%) are unaware that if an obese person tells an employer about their long term conditions at interview and the company does not employ them then the applicant could try and claim disability discrimination, on the basis that it was only because of their obesity that they were not employed.
Employers should always exercise caution at every stage of the recruitment of employees, to properly protect themselves and the integrity of their decision making process. It is important that employers ask the same questions of all candidates, keep notes of all answers given and their decision making process. They must make decisions based on the ability of the employee to do the job.
If they do this and a candidate raises concerns about the reasons for their lack of success at interview stage, it will be much easier to deal with if there is written evidence of the interviews and decision making process. If these details are recorded on a computer, which automatically dates and times it so there can be no suggestion that it has been created after the event, then even better.
If an obese candidate does tell a potential employee that they suffer from various medical conditions and the employer does not recruit them then the candidate may feel that this is because of their size and therefore their medical conditions. Under the Data Protection Act a candidate is able to ask for copies of the interview notes and anything else held by an employer on a computer or in an organised filing system. If emails and documents reveal that a candidate has not been taken on because of their medical conditions then this is likely to be disability discrimination.
If candidates are taken on who have i.e mobility issues, then an employer does have to consider that this may be a disability and make reasonable adjustments (for instance finding a parking space closer to the office). It does not matter what the cause of this disability is. After all, if this reasoning was to be carried to an extreme then should employers with employees who suffer from lung cancer take the view that it is the employee’s fault for smoking?
For those existing employees who are overweight, it is not advisable to sit them down and ask them if there is anything affecting their ability to do their role properly. This is making a stereotypical assumption that those who are larger have difficulties with their health and mobility and may offend them and lead to a claim of constructive dismissal. Much better to amend the company equal opportunities policies to say that if any employee feels disadvantaged they should come and discuss it with the HR department and watch out for patterns of ill health which might open the way for a sensible discussion about the way in which the business can make reasonable adjustments.
We are grateful to the following for the highlighting of our survey and its findings:
Newspapers and journals
The Daily Telegraph (9 April 2015) article by Elizabeth Anderson and The Telegraph on line:
Personnel Today article by Clare Allerton:
The Daily Express Online article by Lana Clements:
Mail on Line article by Lizzie Parry
The Irish Independent:
HR Magazine article by Katie Jacobs:
Real Business article by Zen Terrelonge
The HR Director Magazine
The Sun newspaper Thursday 23 April 2015
Share Radio with Georgie Frost: http://bit.ly/1PsInT6
BBC Radio Hereford & Worcester
That's Oxford TV Monday 21 April 2015
The story made it as far as South Africa….