OF OBESE WORKERS

weight. In some jurisdictions, if an employee’s obesity hinders their ability to perform their job, they may be able to claim protection under the “disability” provision.

In the United Kingdom, obesity itself is not a qualifying disability for protection from discrimination. Instead, the obesity must have caused or contributed to some other physical or mental impairment.

In the United States, severe obesity is a disability under the Americans with Disabilities Act and does not require proof of an underlying physiological disorder.

In the Philippines, obesity is a ground for dismissal under its Labour Code, which allows a company to set qualifying standards for certain positions before hiring an employee.

In Malaysia, the Persons with Disabilities Act 2008 has not adopted words such as “discriminate” or “protection of persons with disability against discrimination”. Such omission raises questions of equality between a disabled person and able-bodied counterparts. In other words, there is no specific protection of obese person against discrimination in the workplace. An obese employee has to rely on existing employment rights to claim protection against discrimination.

Based on the numerous awards of the Industrial Court, an impending dismissal must be substantively justified which could be based on the conduct, capability, redundancy, breach of statutory duty or some other substantial reason.

In determining whether the employer’s decision to terminate the employment due to incapacity was fair and reasonable in all the circumstances, a balance has to be struck between the interests of the employer’s legitimate need to run a business, and the interests of the employee in the continuity of service.

Dismissal should always be a last resort.

It is only when it has been shown that there is no prospect of an employee recuperating sufficiently or recuperating within a reasonable period of time during which an employer could cope without suffering significant loss as a result of the employee’s absence, would a dismissal become justifiable. In short, an employer cannot simply dismiss the employee because of obesity unless they can prove that it not only has an impact on their business but also the incapability of the obese employee to perform the task effectively besides exposing the employee to occupational injury and illness, among others.