By Andrew Hobbs

When it comes to sensitive subjects, the issue of someone’s weight is high on the list – rarely mentioned in polite company and almost certain to land you in trouble, no matter the circumstances.

But when a worker’s weight starts to impair their ability to do their job, it comes time for the health and safety team to intervene, and incidences of this are becoming more and more common.

An example of this came to the Federal Court last week in Findley v MSS Security Pty Ltd (2017), when a security guard argued that his employer’s plan to move him to a new role was discrimination over his weight.

The guard had rejected three different positions offered to him by the security company, saying that at his weight of 198kg he was unable to walk for more than five minutes per hour.

When the company let him go after he refused to take the new jobs offered, he argued that the company had taken adverse action against him, by not waiting until they found a position that did not require walking.

However, Justice Alister McNab found that the job advertisement the guard had applied for, while at a weight of 175kg, mentioned a need for “a high level of physical fitness,” and “the ability and desire to respond quickly in emergency situations”.

“The stipulation by Mr Findley that he could not perform work as a security guard that involved more than five minutes walking per hour meant that he could not perform the inherent requirements of the job that he was employed to perform,” Judge McNab said.

“Once Mr Findley refused the positions available there was not work for him and his employment was terminated in accordance with the terms of the contract.”

‘Crippling’ obesity

Obesity is considered a disability under the Disability Discrimination Act (1992) when it impairs a person’s movement – to the point where they experience a “loss of functioning of a person’s body or part of the body”.

The Fair Work Act (2009) protects workers from dismissal or major changes to their job that are made because of a person’s disability, but this does not apply to action taken because of the inherent requirements of the job concerned.

Nonetheless, the law does take a dim view of workplaces that allow an employee to become obese, and by that extension, disabled.

While it didn’t come up in the above case, an employer has a statutory duty under health and safety legislation to ensure that their employees are fit for work.

In the case of obesity, as it is with any other workplace risk, this involves determining the level of risk – higher in some industries – and developing risk controls that prevent the risk from materialising.

However, we also know that becoming obese doesn’t just happen – overweight people know they are overweight and they know that being overweight can lead to morbid illness and injuries.

Further to this, employees have a duty under health and safety legislation to exercise reasonable care to not place themselves at risk of injury.

3 questions for work fitness

It goes without saying that any steps you take to encourage a worker to lose weight should be taken with respect and patience – a person’s weight is a delicate topic, and there may well be reasons or justifications that you know little or nothing about.

Yet the numbers of overweight people are rising – according to A picture of overweight and obesity in Australia, published by the Australian Institute of Health and Welfare, 63% of Australian adults were overweight or obese in 2014-15, up from 57% in 1995.

The prevalence of severe obesity among Australian adults has almost doubled over this period – from 5% in 1995 to 9% in 2014-15.

While it is not a perfect measure, the Body Mass Index or BMI calculation is one of the most commonly used methods of determining whether a person’s weight is in the healthy range.

As detailed in the chart below, the calculation assesses a person’s height as well as their weight when drawing the calculation, with a BMI of between 18.5 and 24.9 considered to be in the healthy weight range, and anything above 30 obese.

Take a look at your workforce to see whether obesity is playing a role. Can your workers perform the inherent requirements of their job safely?

• Do they need regular breaks?
• Are they finding some tasks significantly more difficult than others?
• Is there the beginning of niggling soft tissue injuries arising from undertaking repetitive work?

If you have a reasonable basis for being concerned, the law permits you to require the worker to undertake a medical assessment.

Where to from here?

Should you decide to help your worker to lose weight, the next step is to help them develop a plan with a health professional – a doctor, a dietician, an occupational therapist and/or an exercise physiologist.

The plan will identify the worker’s responsibility to get work fit before returning to their regular work duties – setting out timelines and expectations for results and milestones that must be reached.

Once it is developed, this health plan becomes a set of lawful and reasonable directions that the worker must comply with under law – and which breaching could constitute serious misconduct.

The plan must also have a safe return to work scheme in place that considers the planned weight reduction and improved fitness.

If the worker is away from work during this recovery period, their weight will need to be a consideration when planning their safe return to work – and they may have to take on lighter work duties or work from home

You should also ensure the worker has emotional support through the process – many people find losing weight difficult and the discussion alone can have a significant impact on their self-esteem, and as result, their capacity to follow through with the plan.