Obesity: a new disability?

For some time, firstly under the Disability Discrimination Act 1995 and now under the Equality Act 2010, workers in the UK suffering from a disability have been protected from discrimination. The UK was required to introduce such legislation due to the European Equal Treatment Framework Directive (the Directive).

Broadly, those workers who suffer from a disability under the Equality Act can bring claims for unlawful discrimination but employers also have a duty to consider reasonable adjustments to assist such disabled workers.

Due to the fact that this UK law stems from the Directive, it is not only UK case law that is relevant, but also case law from the European Courts of Justice (ECJ). It is a recent case referred to the ECJ which has brought up the question of whether workers who are obese are considered disabled.

The relevant case was brought by a Mr Kaltoft, who was a Danish childminder. Mr Kaltoft was, according to the World Health Organisation, obese and during his dismissal process Mr Kaltoft’s obesity was mentioned. Mr Kaltoft was dismissed by reason of redundancy but the dismissal letter did not explain why he was selected for redundancy over his colleagues.

Mr Kaltoft brought proceedings claiming he had been unlawfully discriminated because of his obesity and the Danish court referred two questions to the ECJ which were:

• Should EU Law be interpreted as laying down a general prohibition on discrimination on the grounds of obesity?; and
•  Should the Directive be interpreted so that obesity could constitute a disability?

It is worth noting that the Employment Appeal Tribunal (EAT) in the UK had dealt with a similar issue involving obesity in the case of Walker v Sita Information Network and Computing Limited [2013]. The EAT had found that the obesity itself did not amount to a disability but emphasised a functional approach when deciding whether someone is suffering from a disability which involves looking at the worker’s symptoms, how it effects their life day to day, and the prognosis.

The ECJ held that neither EU Law generally or the Directive made any mention of discrimination being prohibited on the grounds of obesity and so therefore there is no general principle that prohibits discrimination on the grounds of obesity itself.

However, the ECJ goes a little further than the EAT did in Walker v Sita. It states that being obese may, in certain circumstances, lead to that worker being regarded as disabled and therefore entitled to protection against discrimination.

What does this mean for UK employers?

Employers already have to grapple with disability discrimination under the Equality Act 2010 and should continue to be mindful of workers who may have a disability under that legislation. For those workers that appear or are obese, employers need to apply the same tests as they would to other workers.   In summary, to decide whether a worker is classed as having a disability under the Equality Act they have to fulfil the following definition:-

“A person has a disability if they have a physical or mental impairment and the impairment has a substantial or long-term adverse affect on their ability to carry out normal day to day activities.”

If a worker fulfils this definition, employers need to be mindful of their duties under the Equality Act with regard to discrimination and specifically their duty to consider reasonable adjustments.

Therefore, employers must not simply assume that because someone is obese that they are disabled but, likewise, must not assume a worker is not disabled simply because there is no physical impairment. Each case requires thorough investigation, with expert medical input, to assess whether a worker could be deemed disabled under the Equality Act.

If you require advice on this issue or any other employment law query, please contact Linda Wilson on 01730 268 211 or at .