With the UK currently sitting near the top of European obesity tables, a test case coming before the ECJ could rule that obesity is to be treated as a disability. Employment lawyer Chloe Pugh examines the potential impact this could have on employers and businesses.
A recent referral from the Danish courts to the European Court of Justice (ECJ) in the matter of Karlston Kaltoft v Billund Kommune[1], has requested a preliminary ruling on whether the European Equality Framework Directive[2] should be interpreted to also include obesity as a disability.
Mr Kaltoft, a childminder, claimed that his size did not impact upon his ability to work with children, but he believes he was sacked for being too fat and not because of the reduction in the number of children, which was the reason given by the authority for his dismissal. If the ECJ determines that the Equality Framework Directive means that obesity itself should be treated as a disability, this will be binding on the UK, due to the fact that the Equality Act transposes the Equality Directive into our legislation.
Currently in UK law obesity itself is not considered to be a disability[3]. However, if a person is obese but also suffers serious medical issues caused by their obesity, for example diabetes, high blood pressure or osteoarthritis, then those other medical conditions may satisfy the criteria required for disability under the Equality Act.
In those circumstances that person will be disabled, not because they are obese, but because they suffer from debilitating medical conditions as a result of that obesity. It was determined by the Employment Appeal Tribunal in Walker v Sita Information that it is the effect and not the cause of the condition that should be considered in determining whether a person is disabled.
Employers will need to be aware of this, as they may be required to make reasonable adjustments when the employee’s illness is caused by their obesity, and may also need to make adjustments for an employee who becomes obese and therefore struggles with their role due to the resulting medical issues.
If the ECJ finds that obesity itself is a disability, it will mean that employers face increased obligations for more employees. It would mean that a person who could show their obesity had a substantial adverse impact on their ability to carry out normal day-to-day activities would have the right to ask their employer to make reasonable adjustments.
This could cause particular concern for employers in the UK, as a recent study has reported that the UK is in the top five European countries with the highest levels of obesity[4]. It has found that 67 per cent of men and 57 per cent of women are either overweight or obese, with over a quarter of children being obese which also has implications for the future workforce of the country.
An employer may therefore have to consider requests for: more ergonomically designed workspaces and office chairs; parking spaces that are closer to the place of work; changing fire escape routes to provide easier or closer access.
These are obvious examples, but as the duty to make reasonable adjustments also applies to a ‘provision, criterion or practice’ which puts a disabled person at a substantial disadvantage in comparison to a non-disabled person[5], it could also mean that an employer has to reconsider the expectations it has of its employees.
If an obese employee finds that things such as: travel requirements; working hours or patterns; or physical requirements of the job are too difficult to undertake due to their obesity, even though their colleagues who are not disabled can work that way without any difficulty, an employer may have to make amendments to how a role is carried out to remove that disadvantage.
This could mean allowing more frequent breaks; permitting longer travel time; removing the requirement for certain physical tasks to be carried out, or providing additional assistance to them in carrying out those tasks. However, it should be remembered that any adjustments for disabled employees are to be reasonable for the employer as well as the individual concerned.
It is clear that if the ECJ rules that obesity does engage the protections of the Equality Act 2010 there will be many new requests and adjustments that employers will have to give careful consideration to, which could place a heavy burden on employers.
[1] FOA, acting on behalf of Karsten Kaltoft v Billund Kommune Case C-354/13
[3] Walker v Sita Information Networking Computing Ltd [2013] UKEAT 0097_12_0802
[4] Global, regional, and national prevalence of overweight and obesity in children and adults during 1980€ヤ2013: a systematic analysis for the Global Burden of Disease Study 2013, The Lancet, 29 May 2014
[5] S20(3) Equality Act 2010
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Ruling obesity as a disability will probably cost Companies lots of money to cover “ergonomically designed workspaces and office chairs” etc. and they will be more likely to move their companies overbroad. This will lead to underweight, overweight and normal people all to suffer . We definitely need to have increased VAT added to unhealthy food & drink to help the government to cover the likely increased costs.