After some speculation, the decision is in: the effects of obesity can sometimes amount to a disability. The European Court of Justice (ECJ) reached this conclusion following a referral from a Danish court in Kaltoft v Billund. The case concerned a child-minder who claimed that his obesity was a factor in his redundancy.
The ECJ said that if someone’s obesity causes them to have a physical or mental impairment which satisfies the legal definition of disability, they could be protected by discrimination legislation. Therefore, while obesity, by itself, doesn’t confer legal protection, its effects could render a person disabled for employment law purposes.
A UK tribunal has been quick to rely upon the ECJ decision, with a Northern Ireland Industrial Tribunal finding in February, in the case of Bickerstaff v Butcher, that an obese employee was disabled and consequently upheld his claim for harassment. The tribunal was satisfied that Mr Bickerstaff had been “harassed for a reason which related to his disability, namely his morbid obesity condition”.
Not every obese person will be disabled. However, those who are unable to participate in professional life on an equal basis with other workers could well be. This will need to be assessed on a case-by-case basis, focusing on the effect of a person’s obesity, rather than the cause or extent of the obesity itself.
What does this mean in the work place? Employers may need to become more aware of the way in which obesity affects their workers and possibly take greater steps to promote healthy lifestyles for the obese. Also, on a legal as well as a practical and mindful level, employers should consider making reasonable adjustments to working conditions so that overweight workers are not at a disadvantage compared with other workers. It could mean reconfigured workstations, parking spaces or new working patterns. The solution will be dictated by the circumstances. Ultimately, it’s about levelling the playing field.
Alison Gair, Head of Employment Law, alisongair@cliftoningram.co.uk