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Can your work force you to lose weight or get fitter?

Increasingly employees are finding that expectations relating to work also now traverse their private lives, not just through the increase in mediums such as social media, but also through employees being directed by their work to get healthy.

Many employers now place great emphasis on health and wellbeing at work – an idea that in itself is generally well intentioned and has merit.

However, when it comes to a more direct order to lose weight or get healthy at work, the question is inevitably raised on where the line is between your work and personal life and can an employer reasonably tell their employee they have to be thinner or fitter for work?

As an employment lawyer, I have seen a number of these situations recently. One case involved a mine worker whose employer put him on a performance improvement plan that required him to lose 5kg a week. If he didn't lose the weight, his job was under threat. Another case involved a transport company that required its truck drivers to undergo a fitness test that involved running on a treadmill, riding a bike, doing step-ups and lifting 40kg from the floor to a shelf. If they failed the assessments, the company threatened to take their jobs away and place them in an alternative role, whilst at the same time making them go on a personal health plan that included gym sessions, diet plans and weigh-ins.

There have also been instances where workers have been suspended from work for being overweight. I have encountered bus drivers suspended because seats can't hold over 130kg and mine workers who have been told they can't work because their equipment can only take weight of up to 150kg. I know of an employee in an advertising agency that was demeaned because she was overweight and treated as though she had less to contribute than other workers. 

The reality is that there is a fine line in the law. Employers are required to provide safe workplaces, and employees also need to be suitable to do the role that is required of them.

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But does a truck driver need to be able to run on a treadmill, ride a bike, walk up stairs or lift forty kilos to drive a truck? The answer in all likelihood is no. A mine worker is also very likely able to operate machinery and perform duties irrespective of their weight, and arguably a bus driver does not need to be able to run up a hill in order to drive people to work in the morning. The important point to recognise is that someone's contribution to output in a workplace is not diminished simply because they are overweight or unfit.

Any employer requiring a worker to pass a fitness test or meet certain health requirements must do so only for reasons relating to that person's capacity to do the parts of their job that are essential to their role. They should not make generalisations that require all of their employees to meet the same requirements. It is not necessary to test if an employee can climb stairs or do heavy lifting if the employee does not work in a warehouse and in fact works in an office.

Employers claim that the issue of weight and health have to be managed, especially in high-risk industries. This may be the case, but it is essential that an employer genuinely consider the work that person is actually doing and what actual risks there are in their work, rather than make general assumptions about what they can and can't do or what is required of them at work.

While it is also unfair and incorrect for an employer to treat someone differently because of an assumption that being overweight or unfit means a person is lazy, unhealthy or may be likely to have future health issues, the law, other than in Victoria, does not allow for claims of discrimination on the basis of physical attributes. It does however prevent discrimination against someone on the basis of their weight if their weight is caused by an illness or disability.

A perception of what is thin and healthy varies from person to person. An employer should not be able to discriminate against an employee based on their own view of what weight or level of fitness is appropriate, or based on their own prejudice.

Sadly, the reality is that many people with weight or fitness issues already experience discrimination when it comes to finding work and being offered opportunities for advancement, often with very little protection from the law and for reasons not based in fact.  Not surprisingly, this kind of discrimination can be extremely humiliating.

Prejudice against people in a society that aligns thin with health and beauty is ever increasing. And so is the control employers exercise over our conduct outside of work. We must be very careful that the prejudices and assumptions about people do not creep into the world of work in a way that allows an employer to treat someone differently, or even suspend or terminate an employee, simply because they are overweight or may be considered unfit. A person's livelihood should not be affected by assumptions about their capacity or the potential risk of injury that are not relevant to the job they are doing.

Emma Thornton is a Senior Associate in the Employment and Industrial team at Maurice Blackburn's Brisbane office.

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