Stagecoach buses are now fitted with seats that aren’t rated to carry drivers over 20 stone, so the company has told those who weigh too much that they’ll be reassigned until they tip the scales the right way. Sky News carries the story, together with commentary from a detractor who entirely misses the point:
“I wouldn’t put that on anyone. Sometimes it’s not down to lack of exercise. It could be a medical condition, like a thyroid problem. We put our drivers through rigorous and regular medical checks – this is enough.”
If Stagecoach ultimately dismissed a driver who wouldn’t or couldn’t shift the weight, would it be fair? The example is a useful one to describe the steps that employers should take when faced with employees with health problems that affect their ability to work.
Incapability is a potentially fair reason for dismissal under the Employment Rights Act 1996, and should be assessed by reference to “skill, aptitude, health or any other physical or mental quality”. Body weight is squarely placed in this category. But it isn’t as simple as “too fat, you’re fired”. In order for the employer to satisfy the statutory requirement that it has “acted reasonably in all the circumstances (taking into consideration the size and administrative resources of [its] undertaking) in treating that reason as a sufficient reason for dismissal.” For ill health, and weight in particular, any employer should be able to show that he has:
- Obtained medical evidence – weights of 20 stone plus ought to be the subject of medical treatment. Opinion should be sought from the employee’s GP as to what medical support could be given, and the timescales for improvement.
- Consulted with the employee, who should know the nature of the problem, help identify any steps the employee or employer can take to resolve the problem, and what timescales are to be kept to;
- Maintained any employee progress with guidance and warnings on non-compliance;
- when, and if, the situation seems to be moving towards dismissal follow the Acas disciplinary Code of Practice.
The letter sent to Stagecoach employees are therefore the first stage in this process – setting out to employees the problem. But it should also analyse the solutions short of dismissal, and begin a consultation process to save their jobs.
Some employees’ weight may relate to disability, and more creative employees might even try to suggest that obesity itself, even without any underlying condition, qualifies them for protection under the Disability Discrimination Act – an argument which could conceivably suceed. Nonetheless, a process described as above would, if done well, consider reasonable adjustments and alternative deployment in any event.