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Effect, not cause: is obesity a disability?

16 February 15

Employment briefing: the European Court of Justice has ruled that obesity may constitute a disability for discrimination purposes. How should employers respond?

by Amanda Jones

In 2012, an Employment Appeal Tribunal decision held that an obese claimant, who suffered from a number of physical and mental conditions, was disabled under the disability discrimination provisions in force at that time. The EAT clarified that obesity was not in itself an impairment for disability discrimination purposes. However, it went on to find that obesity might make it more likely that a claimant has impairments within the meaning of the legislation.

The claimant in that case suffered from numerous physical and mental conditions including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression. The EAT said the employment tribunal judge had focused too heavily on the lack of an identifiable cause for the claimant’s impairments, rather than the effect of those impairments.

Whether obesity is a disability has been brought back into focus following a European Court of Justice decision handed down on 18 December 2014: FOA on behalf of Kaltoft v Kommunernes Landsforening (Case C-354/13). The Danish case attracted mass media attention, not least due to the particular facts which concerned a male childminder.

Limitation test

Kaltoft had worked for the public administrative authority for approximately 15 years. Throughout his employment he was “obese” in terms of the World Health Organisation definition, having a body mass index of over 30. In 2010, he was the only childminder to be dismissed, which was said to be on the basis of a decline in the number of children (i.e. workload). He claimed that by dismissing him, the authority had discriminated against him because of his obesity. The Danish court made a reference to the ECJ.

The ECJ found (like our domestic EAT, and the ECJ’s advocate general) that there is no general principle of EU law prohibiting discrimination on grounds of obesity. There was no real surprise there. It would have been groundbreaking had the ECJ essentially added a new protected characteristic to the current list of nine. However, it was held that obesity may fall within the definition of disability under the Equal Treatment Framework Directive. This may be if the condition entails a limitation resulting, in particular, from long-term physical, mental or psychological impairments which, in interaction with various barriers, hinder a worker’s full and effective participation in their professional life on an equal basis with other workers. For instance, if the obesity results in reduced mobility, or the onset of related medical conditions, that may render a person disabled. Needless to say, this will very much be considered on a case by case basis. It is now for the Danish courts to assess whether in Kaltoft’s case, his weight gave rise to long-term impairment amounting to a disability.

Focus on need

It had been suggested by some commentators that if someone has, for example, failed to lose weight of their own volition or ignored medical advice, they should not be granted the “privilege of protection”. Importantly, the ECJ held that whether a person is disabled does not depend on the extent to which they may have contributed to the onset of the disability.

It must be remembered that it is the effect, not the cause of the disability which should be considered. The Statutory Code of Practice on Employment states (at para 6.9) that it is sensible for employers not to attempt to make a “fine judgment” as to whether a particular individual falls within the statutory definition of disability, but to focus instead on meeting the needs of each worker and job applicant. Ultimately, “meeting the needs” could result in employers being more alert and sensitive when it comes to considering reasonable adjustments for obese workers who may be disabled.

As well as potential reasonable adjustment claims, employers will have to be alert to “office banter” focusing on the weight of employees. If a workplace is allowed to develop a culture that humiliates, degrades, intimidates or creates a hostile environment for obese employees (or employees perceived to be obese), an employer may face claims of harassment. Employers should reinforce bullying and harassment policies and monitor the use of such language.

It seems unlikely that the ECJ decision will result in a raft of claims in the tribunals, given that each case will turn on its own facts. However, given that statistics suggest that one in four people in Scotland are obese, employers would do well to be mindful of the potential for obesity to be regarded a disability in future.

Amanda Jones, partner, Employment, Maclay Murray & Spens LLP 

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