Today, the European Court has ruled that obesity, unlike sex, race or age, is not in itself a characteristic which attracts the protection of discrimination laws. However, if severe enough, it could be a type of disability which is protected. This could be the case even where there is no medical condition related to the obesity, such as diabetes.  The causes of the obesity are simply irrelevant: obesity will be a disability where it “hinders full and effective participation of the person concerned in professional life on an equal basis with other workers”.

Nicola Kerr, head of Employment at King & Wood Mallesons, said:

“This ruling has been widely anticipated, but raises a number of practical problems for UK employers dealing with very obese staff. Employers may now need to seek medical advice to determine whether an employee’s obesity is severe enough to be considered a disability by the courts, and if so, whether adjustments to the workplace are necessary.

That said, there is no clear trigger point when an employer must refer an obese employee to a doctor.  Under previous UK case law, advice would usually have been sought because of a specific medical condition, such as diabetes. After today’s judgment, employers may have to raise the issue of the employee’s obesity on its own, and such sensitive discussions may trigger complaints or even discrimination claims if not carefully handled. The ruling may also mean that employers will need to implement considerable physical and practical changes to a person’s workplace in order to remain compliant.

There is also a cultural implication. In workplaces where nicknames and comments about size or shape may be seen as acceptable and harmless, how do employers go about changing behaviour for the better?

Perhaps more significant is the impact this will have on the general perception of obesity in the long term. With obesity on the rise, this ruling will mean that even more people will be protected by discrimination laws, with the potential for uncapped employment tribunal claims.”