Over the past few decades, obesity levels in the UK have risen quite substantially. Over a quarter of the UK population are currently classed as obese and it is estimated that this will continue to rise over the coming years.
It is a sign of the times that claims have been made by obese employees and job applicants that they should now be able to make claims for discrimination or harassment based on their obesity. Even more unexpectedly, they may also be able to claim that an employer has a duty to make reasonable adjustments for them due to their weight.
There has been some recent case law that suggests this may have a significant impact on employers. In a recent European case, Kaltoft v Municipality of Billund, an employee was dismissed from his role as a child-minder. The employee claimed that his employer had terminated his contract of employment because of his obesity and that this amounted to unlawful discrimination.
Obesity is not automatically a protected characteristic
The Advocate General (“AG”) of the European Court of Justice (“ECJ”) has recently published his opinion on this particular case. He rejected the argument that obesity is a protected characteristic for the purposes of discrimination laws. This means that obesity itself is not grounds to bring a claim for discrimination.
When is obesity a protected characteristic?
However, the AG does suggest that the effects of obesity may mean that a severely or morbidly obese individual could potentially satisfy the criteria as being a disabled person for the purposes of a discrimination claim.
The AG’s opinion is not binding but is usually a good indicator of what the ECJ may decide. We await the ECJ’s judgment over the next few months. The ECJ’s decision when made will bind UK Courts and Tribunals.
In the meantime in a separate case, Walker v Sita Information Networking Computing Ltd, the Employment Appeal Tribunal (EAT) echoed the AG’s recent opinion. The EAT, in that case, held that obesity in itself is not a disability. However, they said that an obese person is likely to suffer from conditions or side-effects resulting from obesity. These side-effects may amount to a disability.
When might obesity cause concerns?
According to the AG’s opinion, in order to meet the definition of a disability, an employee’s obesity must be so severe that it hinders full participation in professional life by having sufficiently serious limitations such as problems in mobility, endurance and mood.
The bottom line is that if an individual has a Body Mass Index (BMI) of 40 or more, and so is classified as morbidly or severely obese, this may amount to a disability.
It is also important for employers to remember that in order for an employee’s condition to amount to a disability for the purposes of the law in England & Wales (under the Equality Act 2010); they must show that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
UK law also limits its protection to conditions that are likely to last 12 months or more. Employment Tribunals, therefore, will have to consider whether an individual is likely to make successful efforts to reduce their weight within this 12-month time frame.
This means that for us in England & Wales, morbid or severe obesity alone will not amount to a disability unless these additional factors are present.
What do employers need to consider about obesity?
If the ECJ decision follows the AG’s opinion and obese employees can show that they may be disabled for the purposes of employment law, then they will have the right not to be treated less favourably because of their disability (i.e. their weight and conditions flowing from their weight). An employer will also have a duty to make reasonable adjustments for such employees.
In practice, it will be difficult for employers to assess whether an overweight employee is severely obese so as to get this protection themselves. It is almost always going to be advisable to obtain medical evidence in order to determine whether an overweight employee meets the definition of disabled.
The AG is clear that the origin of the disability is irrelevant. Therefore employers cannot refuse to make reasonable adjustments for these types of employees by claiming that the condition is self-inflicted.
For employers to protect themselves against disability discrimination claims on the grounds of obesity, they may need to consider making reasonable adjustments to accommodate that individual. This might include providing obese employees with larger office furniture or work equipment, preferential parking arrangements, or changes to duties or work location to accommodate reduced mobility.
It would also be worth employers retraining employees and updating any equality and diversity policies to ensure that employees are aware that they must act sensitively and appropriately towards obese colleagues.
If you are concerned about this development or want further advice on this or any other area of employment law, please contact our Employment & HR team for a confidential chat.