Obesity: the new disability? The next chapter...

Obesity: the new disability? The next chapter...

Published:

Author: Gwynneth Tan

An industrial tribunal in Northern Ireland has handed down a decision recognising a claimant as disabled as a result of his morbid obesity and upholding his claim for harassment.

We recently reported the Court of Justice of the European Union's finding in Kaltoft v The Municipality of Billund that obesity can amount to a disability. In the first known decision in the UK since then, the industrial tribunal (as employment tribunals are still known in Northern Ireland) applied the principle in the case of Bickerstaff v Butcher [2015] 92/14 FET.

Facts

Mr Bickerstaff was an employee of Randox Laboratories Limited and he was morbidly obese, with a BMI of 48.5. He raised a grievance after being subjected to derogatory comments by his colleagues; including comments that he was a 'fat bastard' and 'so fat. he wouldn't feel a knife being stuck into him'. A colleague, Mr Butcher admitted to using excessively foul language against Mr Bickerstaff but said that he thought that this was banter.

Mr Bickerstaff settled his claims against his employer and other colleagues but he continued his claim for harassment relating to his disability against Mr Butcher.

The tribunal accepted that Mr Bickerstaff's mobility was substantially affected by his morbid obesity and that the stress as a result of his weight was profound. Whilst there was a doctor's opinion that the morbid obesity condition could end after 6 months provided weight loss happened, there was no evidence that this was likely to happen. The tribunal found that Mr Bickerstaff was disabled by his obesity and that he had been harassed for a reason relating to that disability.

Comments

We have previously commented that an obese worker is likely to be protected against direct and indirect discrimination and harassment. Employers may be vicariously liable for the acts or omissions of their employees if they have not taken reasonable steps to prevent such unlawful activity in their workplaces. This would include a situation where an employer 'turned a blind eye' to so called banter.

Steps which a tribunal would consider reasonable are likely to include employee training on equality and diversity, engendering a culture where it is clear what is and is not acceptable behaviour towards others and dealing swiftly and effectively with any grievances raised. Employees should also be made aware that they may be held personally liable in a successful discrimination claim against them individually.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.