Buddy says:  Capability is a potentially fair reason for dismissal, therefore if after a full and fair investigation it transpires that the employee’s weight is stopping him being capable of performing his duties, and if no alternative role for him can be found, then you would be able to dismiss him on these grounds.  Consideration would have to be given as to whether his weight could be classed as a disability, e.g. if an underlying medical condition was causing the weight problem, the employee could be protected under disability discrimination legislation.

Therefore, if you have managed to rule out any underlying illness that could be causing the weight problem then providing you can prove that the employee’s weight is seriously reducing his capacity to do his job, and that you have failed to find him an alternative role within your organisation then you should be able to fairly dismiss him.

Employer information:  In order for the dismissal to be fair in all the circumstances the 3 step statutory dismissal procedure must be followed.  This means the employee must be invited to a meeting to discuss the capability issues.  At this meeting you should raise your concerns about how his weight is affecting his performance and try to find a way to improve his capability.  This may even resolve the situation satisfactorily.

In terms of discrimination, although there is no direct protection against discrimination on the grounds of weight, unlike, for example, race, sex, age, sexual orientation and religion/belief, some existing laws might be used to help protect overweight employees and candidates.  The Disability Discrimination Act 1995 defines disability as follows:  “…a person has a disability…if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities…”.  By virtue of this broad definition, where an individual’s obesity has lasted for at least 12 months and also substantially adversely affects their ability to perform everyday activities, then there is at least some potential for it to be classed as a disability.

If the obesity of an individual is indeed caused by an underlying medical problem, it is very likely that the individual will be protected by disability discrimination laws.  Therefore, an employer cannot discriminate against that individual on the grounds of obesity.  This covers advertising for the post, deciding on whether to offer them the job, providing them with promotion opportunities, subjecting them to any detriment (including harassment such as jokes about their weight) or when deciding whether to dismiss them.

The duty to make reasonable adjustments to any arrangements or physical features of the employee’s place of work will also apply if the employee’s weight problem is seen as a disability and the arrangements place the employee at a disadvantage. Therefore if the employee is struggling in a particular aspect of his role you should consider giving him alternative duties.  Failure to make reasonable adjustments and disability discrimination can result in an award of uncapped compensation. Therefore it is vitally important to carry out a full investigation into the causes of the employee’s weight problem.

Finally, to ensure compliance under discrimination laws, employers should ensure that their equal opportunities policies are up to date, that employees are aware of the consequences of breaching the policy and that relevant training for managers and employees is in place.