The 64 per cent of adults in Britain who are overweight or obese may soon have to be provided with larger office seats, lifts and priority parking by their employers after a recent European ruling that obesity can be a disability.
A preliminary Advocate General’s opinion from the Court of Justice of the European Union has indicated that it was unlawful to discriminate against a person who is so obese that their size affects their work. If this opinion is upheld (and this is likely) at the European Court, employees falling within this category would be classified as disabled and as such would have protection under the Equality Act 2010. This means that their employers cannot treat them less favourably because of their weight and reasonable adjustments would have to be made to the workplace to accommodate such employees.
The test case was brought in Denmark where a local authority dismissed a child-minder because it said he was unable to execute his duties because of his obesity – for example he had been unable to tie a child’s shoe laces. The Advocate General considered that if obesity had “reached such a degree that it plainly hinders participation in professional life, then this can be a disability”. He did add that “most probably” only World Health Organisation class III obesity (i.e. severe, extreme or morbid obesity) will create limitations, such as problems in mobility, endurance and mood, which would amount to a disability for the purposes of the European Directive.
This opinion seems consistent with an earlier decision of the UK Employment Appeal Tribunal that obesity does not of itself render a claimant disabled. However, the effects of obesity might make it more likely that a claimant has impairments within the meaning of the legislation (for example, diabetes, or mobility problems).
Nichola Charvis, a solicitor specialising in Employment Law at Kidd Rapinet’s Slough office comments, “Employers may well find it difficult to establish if an overweight employee is in the severe category and as such, they may decide to err on the side of caution and provide special equipment to their employees more or less on demand. A robust human resources policy specifically to address obesity is recommended.”
If you would like assistance in developing your human resources policy, call Nichola Charvis at Kidd Rapinet on 01753 532541 for further information.
UPDATE (18 December 2014): the Court of Justice of the European Union has now followed the Advocate General’s Opinion in deciding that obesity is not of itself a disability, and has referred the matter back to the Danish Court to determine whether the claimant’s obesity is sufficiently severe that it hinders full and effective participation in working life – which is what would be required for it to amount to a disability in law.