Overwrought over the overweight

Under the Equality
Act 2010, disability
is a protected characteristic. Employers are under a duty to ensure that disabled employees do not suffer any discrimination as a result of their disability. Additionally, employers have a responsibility to make reasonable adjustments to the work place to remove any disadvantage suffered by disabled employees – for example, a hearing loop for the hearing impaired.

Generally, protection under the Act is afforded to characteristics which are not controlled by the individual (sex, race, etc). However, the European Court of Justice (CJEU) in the case of FOA (Kaltoft) v Billund has ruled that obesity
can be a disability. This ruling
is binding in the UK courts. Important to the ruling is the EU court’s judgment that the origin of the disability is irrelevant – even if someone’s obesity is caused by overeating.

Over 60 per cent of people in the UK are overweight or obese, and approximately 25 per cent are clinically obese; these figures are on the rise according to NHS statistics. Obesity significantly increases the risk of illness and disease and affects mobility and self-esteem – all of which could have a significant impact on effectiveness in the work place. With these figures, this is undoubtedly a subject that will increasingly raise its head in the UK workplace. The EU ruling has been roundly criticised by employers and health organisations alike.

Scaremongers have said it could encourage the overweight to avoid slimming down in the hope of receiving additional employment protection or securing a payout. They’ve also said employers could face millions of pounds of costs
to alter offices and factories, including:

• specialist furniture such as larger chairs;
• re-allocating job role duties to accommodate obese employees’ limitations;
• adjusting employees’ targets (including bonus-related targets), so as not to disadvantage obese employees;
• parking spaces next to the workplace;
• allowing the employee more time off work than other employees, for obesity-related medical problems;
• dietary advice to overweight staff;
• gym memberships; and,
• opportunities to work from home.

The CJEU ruled that obesity qualifies as a disability if it ‘hinders the full and effective participation of the person…on an equal basis with other workers’ when doing their job.’

While at present we do not fully know how this ruling will be applied in the UK, it is clear that inappropriate enforcement will likely further discourage obese individuals from taking responsibility and overcoming the problem, as well as placing a further financial pressure on UK companies already in difficult global trading conditions.

If a person is too overweight
to undertake their job, could this
be dealt with under some kind
of capability procedure by encouraging the person to lose weight? Given this judgment, employers will have to be very careful that they do not stray into discriminatory areas.

What this judgment does not mean is that employers will have to, as a matter of course, widen doors, purchase stronger or larger seating or allow obese people to park their car nearer the entrance than other workers. SJ

Damian Robson is an associate at Gordon Brown Law Firm

@GordonBrownLaw