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European Court of Justice decides obesity 'could be a disability'

Defining obesity as a disability may make compliance with the Equality Act much harder

19 December 2014

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Defining obesity as a disability may make compliance with the Equality Act much harder

Obesity can constitute a disability in certain circumstances, the European Court of Justice (CJEU) has ruled.

The court had been asked to consider the case of a male child-minder, Karsten Kaltoft from Denmark, who weighs approximately 25 stone, argued that he was sacked for being overweight. Kaltoft brought a claim for discrimination against case his employers, Billund local authority, after he was dismissed four years ago.

The authority contended that it was a fall in the number of children needing child-minding service which led to Kaltoft losing his employment.

The Danish courts asked the CJEU to clarify whether obesity could be defined as a disability. The court ruled that if the obesity of the worker "hinders the full and effective participation of that person in professional life on an equal basis with other workers", then obesity may fall within the definition of 'disability'.

Earlier this year, Nick Elwell-Sutton, a partner at Clyde & Co, suggested that defining obesity as a disability may make compliance with the Equality Act more complicated for employers.

"If CJEU follows the advocate general's recent opinion that obesity can amount to a disability, then compliance may just get that bit harder," said Elwell-Sutton. "With around 4 per cent of the UK's population having a BMI of 40 or greater this would extend law firms' obligations under the Equality Act 2010 both as service providers to clients and as employers."

He continued: "Under the Act, obligations are imposed on businesses that provide services to the public. These are not to discriminate because of a 'protected characteristic' (in this case if the obesity were so severe as to amount to a disability) or for a reason arising from a protected characteristic and to make reasonable adjustments. It is the latter aspect firms are most likely to encounter."

 

Viewpoint - Kevin Poulter

A warning for employees

The court has stated that obesity in itself is not automatically a disability, but it could be. It will only become a disability if it has an impact on an individual's ability to perform their role and to 'fully participate' in the workplace.

This is an attention grabbing headline which will alert employers to the potential claims obese workers may have and it should be an opportunity for them to consider the impact of a person's weight on their ability to perform their role.

By taking action to consult and voluntarily accommodate obese employees, by making small changes to their working environment, there is a chance that they will prevent any further complaints which would otherwise mean that reasonable adjustments would become necessary i.e. they become disabled because of their obesity or another related condition, such as depression, anxiety, diabetes or joint problems.

This should be seen as a warning for employers which might otherwise have given little thought to dismissing someone solely for the reason of their obesity. It won't prevent people being dismissed if they are unable to perform their role, but will require employers to take into consideration reasonable adjustments to the workplace, work pattern or even alternative roles within the organisation.

Kevin Poulter is SJ's editor at large and a Legal Director in the employment team at Bircham Dyson Bell

 

This article first appeard on PCA's sister publication, Solicitors Journal

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