Obesity in the workplace
Obesity and illnesses related to obesity in South Africa are regarded by many medical practitioners as a pandemic. In medical terms a person with a body mass index over 30 is regarded as morbidly obese.
In a recent judgement by the European courts, judges decided that obesity may be regarded as a disability and that special measures should be taken by employers to accommodate obese employees and to create a comfortable working environment.
In South Africa obesity is not regarded as a disability and the current position is that an obese person should be treated equally to any other employee.
Thus said, if an employee therefore performs poorly, due to their obesity or not, the employer can follow the poor work performance procedure where the areas where the employee’s performance is lacking must be discussed. During this procedure the employee must also be given an opportunity to state his/her case and request assistance to enable him/her to perform according to the employer’s standards.
Follow the right procedure
After the poor work performance procedure has been followed and the employee’s performance has not improved or conformed to the employer’s standards, dismissal may be considered due to poor performance. The employer must however ensure as per any dismissal, that a fair process was followed and all the assistance and measures the employee and employer discussed and agreed upon, was implemented.
One can never dismiss an employee just because of obesity. It is however the employee’s responsibility to ensure that the standards set by the employer in the workplace are met.
If during a discussion with regards to poor work performance, an employee advises that the poor work performance is due to ill heath as a result of obesity, the employer may assist the employee by providing the employee with time off to seek assistance from a medical practitioner and/or a dietician. However, if this is not the reason offered by the employee for his/her poor work performance, the employer should not make any mention of the employee’s weight, as this may be seen as discrimination.
When obesity causes severe medical problems, a medical incapacity procedure may be considered if there is sufficient medical evidence available to support this instance.
The South African courts have not tested the specific subject of obesity in the way the European courts have, and employers should therefore follow the procedures at their disposal.
The LWO Employers Organisation’s capable legal advisors and representatives are able to assist employers to ensure that a substantively fair process and fair procedure is followed to minimize the employer’s risk.
Contact the LWO at 0861 101 828 for assistance and/or advice in this regard.
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