Obesity is a big problem for the oil & gas sector and, like the size of offshore workers, it’s growing. On average, offshore oil workers are 19% heavier than they were in the mid-1980s and their weight has increased by three stones over a 10-year period, according to industry data.
As a result, it takes fewer people to reach the weight limit for helicopters and operators are being forced to lay on extra flights to transport workers, at significant additional cost. It has also been reported that some firms have had to modify and upgrade their rescue rafts to accommodate bigger offshore workers. There is no doubt that obesity is a worrying health issue and that it is costly to business, but what does a heavier workforce mean for an employer? Given its prevalence and the impact that it is having on employees’ ability to work, can obesity be considered a disability?
A disabled person has a legal right not to be treated less favourably because of their disability. The American Medical Association voted recently to classify obesity as a disease. While there is a limited list of conditions which are deemed disabilities for UK employment law purposes (such as cancer and HIV), an individual will also be disabled (and therefore protected by law) if:
- they have a physical or mental impairment, and
- the impairment has a substantial and long term adverse affect on their ability to carry out day-to-day activities.
A recent Employment Appeal Tribunal (EAT) case (Walker v Sita Information Networking Computing Limited) considered whether obesity is a disability.
Mr Walker suffered from numerous physical and mental conditions, including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression, which caused him difficulty in his day-to-day life. A physical or organic cause for his conditions could not be identified other than obesity. Mr Walker argued that his obesity should be considered a disability. The EAT found that while obesity itself does not render a person disabled for discrimination purposes, it may make it more likely that they are disabled due to the number of impairments that can arise as a result of being overweight.
The EAT did, however, note that it might be more difficult for an employee to show that they are disabled due to a lack of an apparent physical or organic cause of any condition (other than obesity), and further, that the requirement for an impairment to be ‘long term’ may be hard for an employee to prove if they could reduce their weight to normal levels well within a year, with the consequent result that they no longer suffered from the various impairments.
The right not to be discriminated against because of disability extends to a positive obligation on employers to make reasonable adjustments for a disabled worker, if a work requirement or policy creates a substantial disadvantage for a disabled worker compared to a non-disabled worker. Adjustments have to be reasonable and they must reduce or remove the disadvantage suffered. They can include adjustments to the way in which a worker’s work is carried out, rather than simply physical adjustments to the workplace, for example, altering an employee’s hours of working, or transferring some duties to another member of staff.
An increase in obese members of the workforce can mean an increase in disabled employees requiring adjustments. However, it should not be assumed that an employee is disabled, and therefore special treatment should be afforded, simply because they are obese. If an employer is faced with a member of staff having difficulty in performing their role, they should consider carefully what the reasons are for that difficulty. If it is on medical grounds, they may fall within the definition of disability. Occupational health can often provide assistance in making this tricky assessment, and suggest what sort of adjustments could be made to allow the staff member to effectively carry out their role.
The size and shape of offshore workers clearly has important implications for safety and equipment design. The biggest safety concern arising from a heavier workforce is helicopter transportation. If a helicopter ditches, workers need to be able to get through small spaces to exit the aircraft quickly. In an emergency situation, body size is crucial, particularly if the only escape is through a narrow window.
To address these concerns, the Robert Gordon University (RGU) in Aberdeen is conducting a two-year study using 3D scanners to measure the size of the workforce. The researchers’ aim is to better inform ergonomic safety in the offshore work place. It is hoped that this will help to achieve safety by design. Preliminary research by the team at RGU has shown that a 90kg man wearing a standard helicopter passenger survival suit increases body volume by 44 litres over that of close fitting clothing.
There have also been calls to have more focus on the ‘health’ part of health & safety. Heavier workers carry the risk of disability discrimination claims if medical issues are ignored or brushed off simply because ‘it wouldn’t be a problem if they just lost weight’. Sodexo, the catering and facilities management firm, has teamed up with Aberdeen University to develop “Well Track”, a healthy lifestyle program for offshore workers. It is hoped that this initiative will boost morale, and have an economic impact in that expensive specialist equipment will not be required.
While some of the consequences of obesity are of particular concern to the oil & gas sector, it is a problem that affects almost every sector and employers would be well advised to consider ways in which they might help to reduce obesity among staff, as well as being equipped to deal with the issues that arise as a consequence of having a heavier workforce.
Verity Clark is a senior solicitor in the employment team of Brodies LLP