According to NHS statistics 25% of people in the UK over 18 years old are classed as obese. The Court of Justice of the EU has recently confirmed that obesity can be a disability. We consider the practical implications of this decision for employers.
An adult is classified as obese if he or she has a body mass index of over 30; severe obesity is where the body mass index is over 40.
The Court of Justice of the European Union (CJEU)'s recent finding regarding obesity in Kaltoft v The Municipality of Billund is in line with the earlier Advocate General's Opinion.
In July 2014, we reported the Advocate General's opinion that whilst there is no general EU law principle prohibiting discrimination because of obesity, severe obesity may amount to a disability and therefore obese workers may be protected by discrimination legislation. We reported details of the Advocate General's decision in a previous article.
The Employment Appeal Tribunal's earlier decision in Walker v Sita Information Networking Computing Limited also reached a similar conclusion and therefore remains good law. We previously published a summary of the case on our website.
CJEU considered whether EU law prohibits discrimination on the grounds of obesity itself or, alternatively, whether obesity could amount to a disability? In relation to the first question, CJEU considered that the EU Equal Treatment Framework Directive could not be interpreted as meaning obesity was a protected characteristic.
However, in relation to the second question, CJEU concluded that the limiting effect on professional activity which may be a consequence of obesity could satisfy the definition of disability.
The CJEU considered that the critical question is not the severity or degree of the obesity itself but the effect of the obesity on an individual, such as having limited mobility or respiratory problems, preventing active and full engagement in work.
In every case, employers should consider the particular facts and whether the person has a long-term physical, mental or psychological impairment which may 'hinder the full and effective participation of the person concerned in their professional life' on an equal basis with other workers.
Importantly, employers must be mindful that an underlying medical condition may not always be required for the definition of a disability to be satisfied.
What does this decision mean for employers?
The effect of this ruling is that someone who is obese may have a disability, but this does not mean that all obese people are disabled. It is irrelevant whether there is an underlying medical condition or that the person may have contributed to the onset of their obesity through lifestyle choices.
Therefore the test in the UK remains for employers to consider whether a person is disabled by reference to the legal definition of a 'disability' under the Equality Act 2010. That is, whether they have a 'physical or mental impairment' which has 'a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities'.
Where an obese worker can show that they have a disability, their employer will have a legal duty to make reasonable adjustments to accommodate them. Reasonable adjustments could include larger chairs or workspace and the use of a disabled parking space.
Although each case will have to be considered on its own facts, it is hard to imagine a situation where an obese or severely obese person did not suffer, at least, some sort of adverse physical effects. Consequently, employers should be mindful of their legal duty to make reasonable adjustments even if they are not entirely sure whether an obese employee is disabled or not.
An obese worker will also be protected against direct and indirect discrimination and harassment. Employers need to ensure their staff training programmes on equality and diversity make it clear that comments or teasing about a person's weight or appearance are not acceptable.
In order to avoid indirect discrimination claims employers need to review their policies and procedures to consider if these could indirectly disadvantage an obese worker who was disabled. For example, could targets set in annual appraisals be unachievable due to an obese worker's mobility impairment?
As the number of obese people in society looks set to increase it seems that employers will need to be more mindful of their legal obligations under disability legislation and this is likely to involve the dedication of greater resources including increased costs.