A case has been brought in the European Court of Justice (ECJ) to determine whether obesity can be a disability under EU discrimination law. The claimant, who is obese (25 stone), was a child-minder for a local authority in Denmark. He was dismissed because his obesity meant he was unable to perform his duties, including on one occasion when he needed a colleague’s help to tie a child’s shoelace. He is arguing that this amounts to disability discrimination. The current position under UK law is that obesity itself is not a qualifying disability for protection from discrimination. However, if the obesity was caused by an underlying medical condition or it gave rise to impairment, such as mobility issues, that condition might constitute a disability if it has a substantial and long-term effect on the employee’s day to day activities. Being obese makes it more likely that someone is disabled.
Potential implications
Approximately 25% of the adult population in the UK is obese with another 25% being overweight. Obesity is also rising across all European countries. If the ECJ determines that obesity is a qualifying disability the implications for both employers and employees will therefore be significant in the UK and Europe. In the event of such a ruling, employees who are obese will have the same legal protections as those with other physical or mental impairments, including protection against unfavourable treatment or dismissal on the grounds of their size.
Employers would have a duty to make reasonable adjustments to the workplace or working arrangements to accommodate obese employees. This might include taking account of the requirements of obese employees when designing the office layout or when considering which tasks, such as those involving manual handling, are assigned to such employees.
Debate
The case has re-ignited the debate as to whether obese employees should have legal protection. Many believe that obesity is a lifestyle choice and one which can usually be avoided, so is different to other long term impairments. Accordingly, it should not count as a disability but employers should instead assist obese employees by providing a healthy work environment with access to support, to reduce their obesity, and employees should be expected to co-operate with their employers in dealing with it. If I were to go back to my first law degree, we were taught that the reason for discrimination law is to prevent prejudice against characteristics over which we have no choice e.g. sex and race. Obesity has a range of causes including medical conditions. No-one would relish the prospect of trying to distinguish between the worthy and unworthy/self-inflicted obese employees.
Outcome
The Advocate General has issued his give his opinion that there is no freestanding prohibition against discriminating on the grounds of obesity but obesity may amount to a disability if it is severe i.e. it plainly hinders full participation in professional life. He suggests that this would include people with a BMI of over 40.
It is now very unlikely that the ECJ will rule that obesity on its own is a qualifying disability. How they will handle the Advocate Generals opinion is difficult to call. In reality people with a BMI of over 40 are probably already covered by the UK case law as described earlier. It is to be hoped that the Court will go with the UK approach rather than the slightly arbitrary numerical approach.
It makes good business sense to address a disability and any necessary reasonable adjustments. For most employers the issues is not a moral or legal one, it is all about whether someone can do the job, albeit with some minor adjustments regardless of whether someone meets the legal criteria. Employers have their opportunity through regular meetings with employees to gain a good understanding of how they are performing or coping. If this identifies difficulties with being over-weight/obese:
- Keep an open mind, avoid jumping to conclusions
- Encourage exercise and healthy eating
- If appropriate, formally advise the employee when their size is having an adverse affect on their ability to undertake their job duties,
- Seek input from Occupational Health or GPs opinion on health & weight
- Consider whether or not these amount to reasonable adjustments
- Assess the impact on the business/the individual of any adjustments suggested and agree a supportive action plan of weight reduction
- Implement adjustments or an exit strategy
- Document what you have done.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
