Weighing the risk

As busy professionals
it is all too easy to become distracted from our own compliance obligations under the Equality Act 2010 as both providers of services to the public and as employers. At the least, this risks professional embarrassment and at worst
an exposure to liability and censure for breaching the Solicitors Regulation Authority’s
(SRA) Code of Conduct.

If the European Court of Justice (CJEU) follows the advocate general’s recent opinion that obesity can amount to a disability, then compliance
may just get that bit harder.

The advocate general’s non-binding opinion in the Danish case of Kaltoft held
that where obesity reaches
such a degree that it hinders participation in professional life, and in his opinion only extreme, severe or morbid obesity, being a BMI of over 40 could suffice, then this could amount to
a disability.

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.

Protected characteristic

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.

The duty to make reasonable adjustments applies where a provision, criterion or practice or a physical feature places the disabled client at a substantial disadvantage and requires adjustments to be made where they are reasonable to remove that disadvantage.

In practice this should be relatively easy to comply with. For example, where a client
has obesity related mobility problems, it may be reasonable to meet at the client’s home rather than at the firm’s office,
to arrange a meeting room on the ground floor rather than having to use stairs, or to
make arrangements to use a proximate office parking space. Under the SRA Code of Conduct firms cannot charge for this.

As employers, firms will have similar obligations, although these are likely to be more challenging to meet. They
will need to ensure that obese employees are not placed at
a disadvantage or treated unfavourably because of their weight or because of something arising as a consequence of their obesity. They will also be obliged to make reasonable adjustments to the workplace. This applies not only to employees but also to partners, limited liability partnership (LLP) members and other workers.

There is also the practical problem of identifying if an individual is so overweight as
to meet the 40 BMI threshold.
In some cases it may be obvious, but in others it may be less
clear cut, particularly where somebody’s weight varies considerably over time. There
is also the delicate matter of raising the issue; after all, an obese employee may be happy with their weight and regard
an enquiry concerning it as unwelcome.

Specific points that firms should consider are: a priority parking place for those with impaired mobility, specialised office furniture and adjustments to any sickness/absence policy which would be triggered by absence due to the obesity, such as allowing more days
off than non-disabled employees. The key to compliance is to consult employees and to take advice from appropriate specialists
e.g. occupational health. Only reasonable adjustments would be required, it does not extend to a wish list.

Unwelcome conduct

Firms would also be vicariously liable for the acts of its employees and partners so the making of ‘fattist’ jokes or other unwelcome conduct based on weight that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment can amount to unlawful harassment. This could lead to either standalone harassment claims and/or constructive dismissal claims based upon that conduct. Disability claims
are uncapped in respect of compensation awards.

Unlike other forms of disability, there is also the added issue that employees may be less sympathetic to an obese colleague on the basis that obesity is perceived as being self- inflicted and, because of this, there may be
a greater propensity to make unacceptable comments. Firms should guard against
this through training of employees and by ensuring breaches are captured by disciplinary policies. SJ

 

Nick Elwell-Sutton is a partner at Clyde & Co www.clydeco.com