Obesity and Recruitment

Peninsula Team

March 31 2015

The issues surrounding obesity have been brought back in to the media spotlight following a salon owner claiming that obese employees ruined her business.

The employer in question has highlighted incidents where three obese hairdressers were booking fake appointments so that, when the fake client didn’t appear, they could leave the salon to go and get takeaways. It was claimed that this was happening up to five times a week, losing the business a significant amount of money. It was also contested that the employees were using 40 minutes of their shift time to eat a McDonalds, would eat numerous packets of biscuits meant for customers and would finish early to go to the chip shop. Although the salon owner has said she will not rule out employing obese individuals she will “think twice” about it.

Despite the fact that the beauty industry relies heavily on image, employers need to think twice about refusing a person a job because they are obese. Following the European decision that obesity can constitute a disability if it hinders “full and effective participation at work” and the resulting successful discrimination claim heard in the Northern Ireland Industrial Tribunal, it is likely that in these circumstances an employer could be facing a tribunal claim for disability discrimination.

Currently there is no precise definition outlining at what level the obesity becomes a disability, for example whether it is moderate obesity or morbid obesity, however as long as the employee can show it effects their participation in working life it can be classed as a disability. Employers should also be aware that underlying conditions associated with obesity, such as diabetes, heart conditions, breathing conditions, may bring the employee within the definition of disabled without taking in to account their obesity.

The salon owner had methods available to her to deal with her employees. The employee’s acts, from fake bookings, spending shift time not completing their allotted work and leaving early, can be classed as acts of misconduct. Though it is likely that a dismissal for the first occasion of one of the events will be unfair, if the employer had taken action for each misconduct incident a fair dismissal could have been reached by increasing the level of sanction for each act. The employer could also have relied on a breach of the implied term of mutual trust and confidence, she had trusted her employees to make fair and true bookings which benefitted the business, and they had not done so which could reasonably result in a lack of confidence.

If you need any clarification on this issue then contact the Peninsula Advice Service on 0844 892 2772.

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