An issue currently being discussed in the EU courts is whether obesity constitutes a disability under the Equality Act? The definition of what currently constitutes a disability is:

‘A physical or mental impairment that has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.’

To an extent obesity ticks all these boxes; it can be long-term, it can cause mental impairments, such as depression, physical impairments, including lack of fitness and risk of health conditions such as asthma, diabetes and heart disease.  Together, these can put a barrier between the ability to normally carry out normal, everyday tasks such as, walking up and down the stairs, concentration, basically, anything that is physically or mentally straining.

A recent case of Kaltoft v The Municipality of Billund, a Dutch child-minder claimed unfair dismissal as he maintained that he was sacked due to being overweight.  During proceedings, he denied accusations that he could not bend down to tie a shoelace and believed that he was perfectly capable of doing his job.

An opinion has been given by the Advocate General and he pointed out the EU definition of disability covers the situation when a physical or mental condition makes “carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing.”

He went on to say that in “cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability. 

Conclusion:  if an individual has a Body Mass Index of 40 or more, so is classified as ‘morbidly obese’, they might be disabled if the obesity has a real impact on their ability to participate in work.  If not, they won’t.

This leads us to wonder about the burden which would be placed on an employer should this situation arise.  They would have to amend equality procedures, making sure that there is no discrimination in the employment procedures or from any of their employees.  Employers would be expected to make special adjustments for employees with a BMI of 40 or above and workplace adjustments, for example providing larger chairs or desks, or allocating car parking spaces closer to the workplace for the individual concerned and could also include reduction in tasks that are physically taxing.

Getting the whole work force to understand that obesity is classed as a disability, could pose even further issues, for example, arguments over who gets the best space on the car park already arise;  would the amount of spaces increase or would it be first come first serve basis, who would get priority? It may lead to individuals being treated unfavourably by others and cause of bullying and harassment to increase.

On one hand we have the argument that ‘the origin of disability is irrelevant,’ and on the other, many people wrongly assume that all cases of obesity are infact self-inflicted.  From a social perspective, many are supporting the latter consensus; that obesity is a condition that can be controlled and prevented.  This therefore leads us to ask how likely the general public will be to change their prejudice of obesity being a negative and self-caused issue.

About a quarter of the adult population in the UK is clinically obese and this is set to rise according to NHS statistics, so to be even a little more sceptical, might claiming obesity as a disability, and making special allowances, discourage those who can do something about it? Increasing health risks, and the percentage of the population who are overweight might increase along with it.

The Judgment is due in a few months’ time and one that employers should definitely keep an eye open for.

For more information on this post contact Danielle Ayres from our employment team 0161 903 5151

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