“Regulation beyond the echo chambers”: who is listening?
Over the last 20 years, obesity levels in the UK have risen exponentially. Statistics show that a quarter of the current population of the UK is obese and it is estimated that this proportion will continue to increase over time. Recent case law suggests this may have significant implications for employers.
In the recent Danish case of Kaltoft v Municipality of Billund, the Claimant was dismissed from his role as a child-minder. He claimed that his employer had terminated his contract of employment because of his obesity and that this amounted to unlawful discrimination. The Danish court made a reference to the European Court of Justice, asking whether:
The Advocate General’s opinion
In his proposal to the Danish Court, Advocate General Jaaskinen (AG) rejected the argument that obesity is a protected characteristic per se, referring to the fact that none of the EU Treaty or Charter Articles explicitly refer to obesity as a prohibited ground of discrimination. In his opinion, although it is possible to argue that Article 21 of the EU Charter of Fundamental Human Rights prohibits discrimination generally, it would be a step too far to infer a stand-alone prohibition on “obesity discrimination”.
However, in the AG’s opinion “severe” or “morbid” obesity may amount to a disability for the purposes of discrimination law. Last year in the case of Walker v Sita Information Networking Computing Ltd, the UK EAT similarly held that obesity in itself is not a disability but an obese person is likely to suffer from conditions or side-effects resulting from obesity, which are often likely to amount to a disability. The AG’s opinion therefore goes a little further than the EAT case by suggesting that obesity of a certain severity may constitute a disability in itself.
Whilst the AG’s opinion is not binding, it is likely that it will be followed by the European Court. The decision of the ECJ will then be binding on UK courts and tribunals.
So when might obesity be classified as a disability?
According to the AG, in order to meet the definition of a disability, the obesity must be so severe that it hinders full participation in professional life. He went on to say that it is possible that individuals who have a body mass index of over 40, who fall under the category of World Health Organisation class III obesity (severe, extreme or morbid obesity), may be obese to the extent that it amounts to a disability.
In order for a condition to amount to a disability for the purposes of the Equality Act 2010 (UK law), an individual must show that he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities. Therefore obesity alone will not amount to a disability unless this test is met.
What does this mean for employers?
If the AG’s opinion is followed and obese individuals can show that they are disabled for the purposes of the Equality Act 2010, then such individuals will have the right not to be treated less favourably because of their weight and the duty to make reasonable adjustments will be extended to protect such employees/prospective employees. Of course, in practice it will be difficult to assess whether an overweight employee is severely obese and it will most likely be necessary to have sensitive conversations with obese individuals and/or obtain medical evidence in order to determine whether an overweight individual meets the definition of disability. Further, the AG was clear that the origin of the disability is irrelevant and therefore employers cannot refuse to make reasonable adjustments by claiming that the condition is “self-inflicted”.
Therefore to guard against potential disability discrimination claims on the grounds of obesity, if an individual is severely obese, consider making reasonable adjustments, to accommodate that individual and ensure that you do not subject that employee to any less favourable treatment because of their weight. For example, employers may need to adapt the obese employee’s workspace, provide a bigger chair and desk, provide a car parking space near the front door and avoid giving him/her duties involving mobility.
It may also be necessary to train employees and update your equality and diversity policies to ensure that your workforce is aware that they must act sensitively and appropriately towards their obese colleagues.
Finally, employers may choose to promote health and wellbeing at work, for example by encouraging exercise and healthy food choices to achieve a balance between encouraging healthy lifestyle choices and accommodating obesity.
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