Should obesity be protected by disability discrimination legislation?

16 April 2013

The UK reportedly has the most overweight population in Europe. Adult obesity rates have quadrupled in the last 25 years, and over 20% of Britons are now regarded as XXL. Health issues associated with being overweight reportedly cost the NHS more than £5 billion a year. And it’s not just health care professionals who need to be alive to these problems.

In the recent case of Walker v SITA Information Network Computing Limited, the Employment Appeals Tribunal (EAT) held that depending upon the extent to which an employee’s obesity-related symptoms impair their ability to carry out normal, day to day activities, that employee may be protected by disability discrimination legislation.

Mr Walker, who weighed 21.5 stone, brought a discrimination claim against his employer on grounds of disability. He suffered from numerous health problems including asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach complaints, anxiety and depression. Whilst these problems gave rise to multiple symptoms which affected his daily living (such as pains in his head, abdomen, leg, feet, constant fatigue, and poor concentration and memory), none could be attributed to a recognisable pathological or mental cause. An occupational health specialist therefore concluded that Mr Walker suffered from “functional overlay”, compounded by his obesity.

The question for the tribunal was whether Mr Walker was disabled; whether his obesity amounted to an impairment within the meaning of the Disability Discrimination Act 1995 (now replaced by the Equality Act 2010). At first instance, the tribunal held that Mr Walker was not disabled because no physical or mental cause for his symptoms could be identified.

However, on appeal, the EAT ruled that the tribunal had erred in law when considering the cause of Mr Walker’s symptoms. Instead, it ought to have focused on the effect those symptoms had on his ability to carry out normal activities. The EAT held that the tribunal ought to have asked itself whether Mr Walker had an impairment, whether that impairment was physical and/or mental, and whether it had a substantial and long-term impact on his ability to carry out normal, day to day activities. It was the effect of any such impairment which was crucial, not its cause.

Although the EAT explained that the cause of any impairment may be important where there is an evidential issue as to whether a person is actually suffering from that impairment, in this case, no questions were raised as to the genuineness of Mr Walker’s symptoms. Had there been a question mark over Mr Walker’s symptoms, because there was no recognisable cause for them, it would have been open to the tribunal to conclude that he did not genuinely suffer from a disability.

The EAT also held that the cause of an impairment may be relevant when determining whether an individual’s symptoms are sufficiently “long-term” to fall within the ambit of discrimination legislation. To have a disability, a person needs to show that they have suffered an impairment for a significant period of time, typically 12 months or more. If an obese Claimant decides to lose weight and succeeds in doing so to such an extent that they no longer continue to suffer any adverse effect on their ability to carry out normal day to day activities, they may not be disabled.

Whilst the EAT ruled that obesity, of itself, does not amount to a disability (and that an obese employee cannot, therefore, automatically be regarded as disabled), it conceded that obesity may make it more likely that a person qualifies as “disabled” on account of the associated health problems they may suffer.

Thus, there are a few key points which employers should bear in mind in light of this case.

  1. Assess whether an employee genuinely suffers from a physical and/or mental impairment (bearing in mind that it is the effect of the impairment which is important, not necessarily its cause).
  2. Establish for how long the employee has suffered any such impairment. If the individual has only suffered it for a matter of months, it is arguable that that impairment does not have a “long-term” effect on that person’s ability to carry out normal day to day activities. Therefore, they may not be protected by disability discrimination legislation.
  3. If an employer is considering taking any form of disciplinary or other action against an obese employee, it ought to assess whether any associated health problems suffered by that employee might amount to a disability, in which case, it may be appropriate to make reasonable adjustments

The case of Walker v SITA does not, therefore, change the tribunals’ approach towards disability discrimination. Nonetheless, it does address the controversial issue of whether or not obese people are (or ought to be) protected by the legislation. In so doing, it mirrors the developing trend in the US, where the notion that obesity amounts to a disability under US law is gaining momentum.

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