At the beginning of January we saw the landmark ruling by the European Court of Justice (ECJ) stating that if the obesity of a worker “hinders the full and effective participation of that person in professional life on an equal basis with other workers,” then obesity can fall within the concept of “disability”.
This decision is now binding across the European Union and has created a precedent that is likely to have a major impact on employment rights in the UK.
So what does this ruling really mean for HR and employers and what adjustments, if any, will they need to make to their employment processes to ensure the company is not left open to any claims of discrimination.
The case
The judgement stems from the case of Kaltoft v Municipality of Billund involving a Danish childminder who claimed that his employer had ended his contract of employment because of his weight, and that this amounted to unlawful discrimination.
Mr Kaltoft was 5 feet 7 inches and weighed over 25 stone, with a BMI of 54, which is extreme or morbid obesity under the World Health Organisation classification. He had been working for his local authority for 15 years before he was dismissed on the grounds that there was a decline in the number of children, but he was not given any additional statement as to why he personally was selected for dismissal.
Although the reason for his dismissal is disputed by the local authority, the Danish Court asked the ECJ to rule on whether discrimination on grounds of obesity is prohibited under EU law and, if so, whether this stems from the EU Treaty or the Equal Treatment Framework Directive (which lists a number of prohibited grounds for discrimination including disability, race and age but not specifically size).
Following the ruling, the Danish courts will now have to review the case to decide whether Mr Kaltoft’s weight has given rise to factors that can be classed as a disability.
Facts of the Judgment
It is important to remember that this decision does not actually involve any change to the legal position in the UK. It remains that there is no general principle of law which prohibits, in itself, discrimination on grounds of obesity. Importantly, the judgement stopped short of declaring obesity to be a protected characteristic against which all discrimination is prohibited, such as someone’s race or sex.
The ruling emphasized that obesity will not automatically be regarded as a disability; the normal test to establish a disability must still be satisfied. In addition, the judgement makes no direct link between Body Mass Index and obesity, but it is a powerful statement that an obese worker whose weight hinders their performance at work is entitled to disability protection.
To confirm the definition of disability, tribunals must still follow the fairly uncontroversial approach of focusing on the effect of the person’s condition on their day-to-day activities rather than the cause of their symptoms. HR must remember that the concept of ‘disability’ does not depend on the extent to which the person may or may not have contributed to the onset of his disability; and must be careful that they do not take the stance that the obesity is self-inflicted, and so the employee should deal with it themselves.
However, the ruling means that an individual’s obesity, and conditions resulting from their obesity or size, could be considered a disability under EU legislation. The ruling means that employees who suffer from, for example, joint problems, depression, or diabetes, specifically because of their size, will now be protected by the European Equal Treatment Framework Directive and cannot be dismissed because of their weight.
What now for employers?
Obesity will not always amount to a disability. The existing test must still be satisfied. In addition, because of the need to consider effect rather than cause, and the need for an employee to show their full and effective participation in their professional behaviour is hindered, there remains quite stringent limits on which employees will now be protected by disability discrimination legislation.
However, where an employee is considered disabled due to obesity, they will be protected against direct, indirect discrimination and harassment. Arguably the issue of greatest concern to the employer is the requirement to make reasonable adjustments pursuant to Section 20 Equality Act. If obesity can be defined as a disability, an employer will need to rethink their workplace and policies will have to be amended so that such employees are not treated less favourably.
The problem with this for employers is that it is not at all easy to know whether an adjustment is or is not reasonable in a given situation. This could lead to disputes and of course significant amounts of management time and other resources being diverted to deal with this issue. Employers will also have to consider that the ruling could cause some tension between obese employees and those employees of a healthy weight, who may resent the adjustments for a condition that can be self-inflicted. However, without question, it means that employers, retailers and venues open to the public will have to review the way they treat overweight staff and customers.
It is unclear from the ruling what it would be reasonable to expect employers to do, so the government will need to work with businesses to establish clear guidelines and avoid unfair costs being levied on firms. However, it is not difficult to image that obese employees might reasonably require a bigger desk; a larger chair or being offered a parking space closer to the office. In some severe cases, it could also mean moving the employee to a new role.
Reasonable adjustments could be required where the obesity of the worker hindered their participation on account of reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.
As well as dealing with the problems that obesity may give rise to, all employers should make sure they encourage healthy lifestyles at work. This could include ensuring employees to take the lunch break they are entitled to, and that they leave the office for at least part of this period to get fresh air and a short walk. Business may also want to join, for example, the cycle to work scheme or other similar schemes.
What action can employers take?
Employers always need to be alive to the possibility that they will have a duty to make reasonable adjustments for an employee. Recognising that if someone is obese, they are likely to have some other medical conditions associated with that state, such as diabetes, high blood pressure or joint problems, and considering whether these could have any effect on their participation in professional life, is a sensible approach. However, employers should be careful not to make assumptions because weight it always going to be a sensitive issue.
Employers should take a proactive approach to dealing with any employees who are overweight, and should take time to consider what adjustments their business could provide.
Employers are likely to find that more and more of their workforce becomes obese as all the predictions are that obesity is on the increase in the UK. Some researchers have predicted that up to 48 percent of men and 43 percent of women in the UK could be obese by 2030. This judgment therefore provides potentially relevant and helpful guidance for employers.
In terms of recruitment, it is always good practice to ask if an applicant needs any adjustments made for them to enable them to participate in the recruitment process, regardless of whether or not the employer knows they are disabled. However, remember that employers should not ask about an applicant’s health or disability before any job offer is made.
The ruling will increase awareness among employers of their responsibility towards obese employees in the workplace. Employers need to be careful they don’t suggest that an overweight employee has only themselves to blame. This ruling places obesity in the same position as other forms of risk taking such as ski-ing or horse riding. We don’t refuse special treatment to someone who is unable to walk following a horse riding accident, and now we can’t refuse special treatment to someone who cannot fully participate in their work life because of their weight.
Albert Bargery is a solicitor, specialising in employment law. He qualified as a solicitor in 2014 after training with a well-established firm in High Wycombe. Albert is part of the Litigation department at Parrott & Coales n Aylesbury and his litigation expertise extends to advising organisations, businesses and individuals on a range of contentious and non-contentious employment matters such as employment contracts, redundancies, maternity rights, unfair dismissal, discrimination and transfer of undertakings (TUPE).
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