The row over the fireman sacked for being too fat, plus the threat of "Big Brother" monitoring, have turned the spotlight on the weighty issue of workers' waistlines.

With Scottish obesity levels currently second only to those of the United States of America, the role of business and the government in tackling the problem has been brought into sharp focus.

A deal has now been reached over the case of North-east firefighter Kevin Ogilvie, whose sacking for being too fat and unfit for duty led to a threatened strike by members of the Fire Brigades Union. He will now keep his job but, at a meeting with ACAS, it was agreed his employment would continue, subject to agreed strict criteria which will be monitored closely by both sides.

Recently, in an effort to tackle the wider issue of obesity levels, the Scottish Government outlined plans to allow weight to be monitored in the workplace via an interactive software package. The plans include measures aimed at incentivising employers to tackle obesity amongst staff.

Although these plans are been viewed by many commentators as being excessively "Big Brother" and remain to be finalised, employers should tread carefully when seeking to address weight issues, according to Aberdeen employment law expert Kim Pattullo.

The partner with leading UK law firm Shepherd and Wedderburn says the first issue for employers to bear in mind is that an individual who is overweight may be protected under the disability discrimination legislation.

Although obesity has not yet been classified as a disability in itself, the cause of the obesity may be classed as a disability for the purposes of the disability legislation. For example, an employee may be suffering from depression which is the underlying reason for the obesity arising. The depression could be viewed as a disability depending on whether it produces a substantial and adverse long-term effect on that employee.

A business may feel that an overweight employee who refuses to accept help that is offered and is increasingly unable to do his job as a result of his physical condition can legitimately be dismissed. In some cases that view is correct, but employers need to ensure that they have investigated and discussed matters with the employee and, if disability is an issue, that they have exhausted their obligations under the disability legislation. These could include making reasonable adjustments to the individual's role.

The relationship between every employee and employer is seen in the law's eyes as one of trust and confidence. If the employer seriously damages that relationship then this can cause an employee to resign and claim constructive dismissal.

Kim Pattullo said: "While the government's idea has good intentions behind it, employers would be better placed to offer employees annual health checks and support for employees needing to lose weight - just as we saw when the smoking ban came into effect."

Employers should therefore think carefully before deciding how to tackle workplace obesity. In addition, employers should be taking steps to ensure that workplace 'banter' about weight issues is not allowed, in order to minimise the risk of claims of harassment being brought not only against the Company, but potentially also against the individual doing the harassing.

It is also foreseeable that employers who force employees to provide details of their weight could fall foul of data protection laws. These usually prohibit an employer from collecting details about a person's health or physical condition (regarded as "sensitive personal data") unless this is in the vital interests of that worker (or the public) or necessary in relation to their particular job.

It is possible to envisage employees seeking to challenge business decisions such as promotion and pay rises on the basis of weight and the employer discriminating against those that are seen as the biggest health risk.

And according to Kenny Mullen, a commercial law specialist and partner at Shepherd and Wedderburn: "While it's not necessarily illegal in all cases and there are certain occupations where you could see a justification, employers need to tread very carefully when forcing employees to disclose information about medical history or physical condition.”

It will be interesting to see how business responds to the Scottish Government's lead on promoting the well-being of workers, whilst also safeguarding the commercial interests of employers.

Kim Pattullo is a partner specialising in employment at leading UK law firm Shepherd and Wedderburn LLP.

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