Can obesity be a disability? That is the question the European Court of Justice (ECJ) is currently grappling with in Karsten Kaltoft v Billund Kommune. Mr Kaltoft is a Danish child-minder who weighed 25 stone and was dismissed from his job when his obesity meant that he struggled to perform some of his duties, such as tying up children’s shoelaces.
The Advocate General has issued an opinion on the issue of whether obesity, without more, falls within the European Union definition of disability. This opinion takes the view that, whilst obesity is not automatically regarded as a disability, it can be considered to be a disability where “the condition of obesity has reached a degree that it…….plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations”
This ruling could have significant implications for all employers in the UK. The Equality Act 2010 forbids employers from discriminating against disabled employees and makes them subject to a duty to make ‘reasonable adjustments’ at work for disabled employees. Given that 64% of UK adults are considered to be overweight or obese, employers could find that their workforce suddenly consists of many more disabled employees.
Under UK law obese employees can argue that they are disabled. The definition of disability in the Equality Act does not expressly exclude obesity. While some conditions are specifically excluded, there is nothing in the Equality Act to prevent an employee from arguing they are disabled because of their weight. Whether or not an employee is disabled depends on whether they satisfy the definition of disability in the Act; namely whether they have a physical or mental impairment which has a substantial and long term effect on their ability to carry out day to day activities. Some obese employees who suffer from physical impairments caused or exacerbated by their obesity will clearly satisfy this definition.
This is exactly what happened last year in Walker v Sita Information Networking Computing Ltd where the Employment Appeal Tribunal (EAT) held that an obese employee, who suffered from several physical conditions including knee and bowel problems, was disabled. Although the EAT stated that being obese will not render an employee automatically disabled, in its view obesity could make it more likely that an employee is disabled.
It is only a matter of time before more obese employees seek the protection of the Equality Act. If faced with difficulties employers should consider:
- Where an obese employee is struggling with some of their duties or having a lot of time off work, investigate whether they have any underlying physical conditions such as heart disease, type 2 diabetes, high blood pressure or joint problems. If necessary, obtain a medical report.
- Consider making adjustments to the employee’s duties or working environment if their physical impairments are making it difficult for the employee to carry out their work.
- If their poor performance or sickness absence is serious enough that formal action is being considered, take legal advice before acting to minimize the risk of a disability discrimination claim.
To discuss this or any other employment law issue get in touch with one of our employment solicitors at contact@integralegal.co.uk or 0115 987 6790