OBESITY could lead to non-communicable chronic diseases such as diabetes, heart disease, stroke and certain types of cancers.
Unfortunately, Malaysia has the dubious distinction of having the highest prevalence of obesity in Southeast Asia. A sedentary lifestyle is among the main factors for the high incidence.
Whether obesity should be labelled a disease had been debated for years now. Some have classified obesity as a multi-metabolic and hormonal disease. The insurance companies may not be inclined to cover obesity due to the high risk of health problems. If they do accept coverage, the obese person could expect to pay a higher insurance premium.
In employment, an essential qualification for employment of a person is that the employee must be physically mobile. Generally, employers are reluctant to engage an employee with disability either because they are considered a “burden” or “liability” to the employer or that the employer has no facilities to house the disabled person.
Engaging a disabled person would mean the employer would incur extra costs by providing reasonable facilities in the workplace.
Disability can be categorised into disability before employment, or after employment. The issue that relates to the first category is exploitation due to the inadequacy of protective laws. In relation to disability after employment, the issues faced by the employee are that of victimisation, pressure or coercion to resign from employment, among others.
Generally, obese people are discriminated against when applying for jobs and when hired, they are more likely to be made redundant on the basis of their 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.
PROFESSOR DR ASHGAR ALI ALI MOHAMED
Ahmad Ibrahim Kulliyyah of Laws, International Islamic University, Malaysia