Judgment handed down in landmark obesity discrimination case

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Individuals who are morbidly obese could soon have the same discrimination rights in the workplace as employees who are gay or disabled if the European Court of Justice (ECJ) follows the opinion of its Advocate General which was delivered this morning.

The eagerly awaited decision relates to the case of Danish nursery worker, Karsten Kaltoft, who was sacked by his local authority, Billund Kommune, purportedly on the grounds of redundancy. Mr Kaltoft argued that this explanation was a sham and that he had been dismissed because he could not bend down to tie up a child’s shoe laces.

Karsten Kaltoft claimed he was discriminated against because of his size and weight and the Danish courts referred the issue to the ECJ.

Currently in the UK, the Equality Act 2010 protects individuals from discrimination if they have a ‘protected characteristic’ such as disability. The Act protects physical and mental conditions which result from obesity, but this was the first time a European Court had considered whether obesity is a disability in its own right.

Although the Advocate General in handing down his decision following the hearing on 12 June 2014 said that obesity does not of itself automatically amount to a disability, it could if the individual was morbidly obese.

Commenting on today’s decision, Glenn Hayes, an employment law Partner at Irwin Mitchell, said: “It will be interesting to see how the UK courts interpret this opinion as it seems to take us a little further down the road to obesity being recognised as a disability.

“If being obese means that an individual cannot perform the essential duties of their role and this condition is likely to be long term (which in the UK means at least 12 months) then the duty to make ‘reasonable adjustments’ probably kicks in, even if there is no underlying cause or illness. It is the effect of the obesity not its cause that is the key focus for the Tribunals.

This could mean that employers could find themselves under a legal obligation to make adjustments such as providing car park spaces close to the workplace entrance for obese employees, providing special desks, or providing duties which involve reduced walking or travelling, or possibly even ensuring that healthy meal options are provided at their staff canteen.

“Employers will certainly be looking at this opinion closely because the repercussions could be significant.”

“The issue of whether being severely overweight is a long term condition may not be straightforward to resolve. In this case, Mr Kaltoft had been overweight for the 15 years he had been employed and had not been able to have gastric band surgery and financial support by his employers to get fit, had clearly not worked. For example, Tribunals may be asked to consider to what extent will an employee be expected to try and lose weight to ameliorate the problems they face at work.

Mr Hayes added: “It may also have wider implications in that employers who make adverse assumptions about a “fat” candidate or employee’s commitment or ability to perform the job, based purely on an individual’s weight, will be deemed to have directly discriminated against him or her and they will also need to take a more active role in ensuring adverse comments are not made against an individual to ensure that no harassment claim is successful.”

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  1. It may be the way in which people become obese in comparison to other disabling conditions that makes this decision such a contentious issue. However, the legal position has not changed.

    Obesity is not a disability per se but those who are deemed morbidly obese (with a BMI of over 40), are likely to experience other health concerns which makes their full and effective participation in day to day activities and work impossible. I.e. heart problems, diabetes, difficulty breathing etc.

    Employers would be well advised to take great care when recruiting, disciplining, managing performance or dismissing employees who may be technically morbidly obese and should avoid making stereotypical assumptions about their capabilities or lack of capabilities.

    Employers should make further enquiries about a person’s obesity if is considered to be an issue i.e. what are the effects of the obesity, are there any underlying medical conditions which have led to the obesity and are there any other associated conditions which require further investigation? It is only by addressing these questions that you can decide whether the individual may or may not be disabled and consider what reasonable adjustments can be made for their condition.

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