haw-week-badgeIn December 2014, the European Court of Justice (the ECJ) reached its decision in the case of Kaltoft vs Municipality of Billund, the much publicised case involving the dismissal of an obese Danish childminder.
Mr Kaltoft, who was dismissed in 2010, after 15 years of service, claimed that his dismissal was related to his obesity and therefore amounted to discrimination. The Danish courts referred the matter the ECJ and requested a preliminary ruling regarding EU law on discrimination on grounds of obesity.

Last summer, the Advocate General, the European Union’s most senior legal adviser, confirmed that his opinion was that severe obesity could amount to a disability under the Equal Treatment Directive despite there being no general principle of EU law prohibiting discrimination on the grounds of obesity or size in its own right. In late December the ECJ found that severe obesity could amount to a disability, and questions as to the cause of the impairment in question were irrelevant (“The concept of ‘disability’ within the meaning of Directive 2000/78 does not depend on the extent to which the person may or may not have contributed to the onset of his disability.”).

Unfortunately, the ECJ did not go as far as the Advocate General did when he set down some suggestions as to what level of obesity might constitute a disability (he had suggested that a BMI of 40 as the tipping point) and so each court will have to consider the extent to which the Claimant’s weight hinders their “full and effective participation of that person in professional life on an equal basis with other workers” and whether “the limitation is a long-term one” in order to decide whether a particular Claimant is disabled by virtue of their weight.

Examples of treatment that could now be unlawful include:

• Dismissing an employee (as in Kaltoft) because they cannot perform certain physical aspects of the role
without going through a fair process and considering making any reasonable adjustments
• Refusing a request for a bigger chair or workspace
• Refusing to make adjustments to enable the employee to commute to work more easily (i.e. by allowing them to
park nearer the office)
• Refusing an employee’s request to move into less physical role
• Not employing or promoting an overweight candidate;
• Workplace ‘banter’ relating to an overweight employee’s size

Implications for UK employers

Joanne Boyle, Partner and Employment law expert at Bond Dickinson, explains that “what this means, quite simply, is that severely overweight employees are now entitled to the same protections in the workplace as are afforded to disabled employees, if their weight gives rise to a physical impairment that meets the statutory definition of a disability (i.e. it has a substantial and long term adverse effect on their ability to carry out day to day activities). These protections include the right not to be treated less favourably, to have reasonable adjustments made in their favour if necessary and, perhaps most importantly, the right not to be subjected to ‘banter’ that could amount to harassment.”

What should employers be doing about this?

Joanne Boyle’s view is that “all employers, regardless of size, should be educating their staff about the implications of the Judgment. In many workplaces or industries, efforts to do so are likely to be met with bemusement but that shouldn’t deter employers. From management down, workforces need to be aware of the implications of their actions in light of the decision.

From a management perspective, managers need to know that they have a duty to prevent any inappropriate banter. Most companies will have bullying and harassment policies in force, and most managers will be aware that mickey taking or other forms of ‘banter’ relating to race or ethnic origin, homosexuality, gender or age (for example) has the potential to cause problems but weight now needs to be added to that list (together with other, less obvious, protected characteristics such as religion or belief, marital status and, from next year, caste).

Managers will also need to be informed of the dangers of allowing their biases, whether unconscious or otherwise, to inform decisions in the context of recruitment or promotion. A study in the summer of 2014 that set out to test whether unconscious attitudes towards disabled people had changed since the huge success of the 2012 Paralympics showed disabled people to be the group that suffers from the highest amount of unconscious bias when compared with gender and ethnicity, with one in three of those taking part in the study showing at least a moderate level of unconscious bias against the visibly disabled.

Bias against overweight employees is likely to be at similarly high, or higher, levels and, arguably may well be more conscious with many people holding the view that excessive weight can indicate a lack of self-discipline, laziness and other less than attractive traits when it comes to demonstrating worth within the workplace.”

This suggestion is supported by academics. For example a study conducted in America in 2007 into workplace bias against overweight people found that overweight people often were at a distinct disadvantage in a recruitment scenarios when compared to average sized candidates. The report highlighted a number of unique aspects of obesity as possible reasons for these increased levels of bias against overweight people. These factors included the “social acceptability” of bias against overweight people (noting, in particular, that even overweight people will often hold negative views towards their own weight and that of other obese people), the perception that size is something that people can control and the visible nature of obesity.

At ground level, too, the Kaltoft Judgment will have a significant impact. ‘Fat banter’ is, sadly, an everyday part of life and whilst there was a feeling amongst lawyers that severe obesity could amount to a disability if it gave rise to physical impairments that met the definition, it is now clear that references to an overweight person’s eating habits, exercise regime or personal hygiene could all amount to harassment under the Equality Act. Indeed, even where such banter is not aimed at someone whose weight is so severe that they do meet the statutory definition of a disabled, legal risk could still arise under the sections of the Equality Act that provide that discriminatory treatment based on a perception that somebody has a protected characteristic. Having trained over 4,000 frontline managers, it is clear that managers still grapple with what is lawful and unlawful banter. The issue of obesity now adds a further dimension to that issue. Managers must be aware of their responsibility to both staff and the business to grow an engaged and sustainable workforce.

Efforts to educate managers and staff as to the extent of these legal risks are going to be important over the next 12 months. Reminding staff that the Equality Act provides for personal liability can often be an effective way of highlighting the risks of falling foul of the act to employees that might otherwise not see it as ‘their problem’.”

Conclusion

Although the decision wasn’t unexpected amongst lawyers and arguably only amounts to a high profile restatement of the law as we already understood it, many employers will have good reason to be nervous and workplace banter will be an obvious risk area. To mitigate this risk, employers should ensure that their bullying and harassment policies are updated and training is given to staff and managers to make them aware of the risk.
Additional training should also be given to managers who are involved in recruitment and promotion in an effort to reduce bias, both conscious and unconscious, against severely overweight candidates.

Managers will also need to be informed that the, hopefully, well understood provisions relating to reasonable adjustments, could now apply to severely overweight employees depending on the circumstances. Finally employers should review their practices in order to consider whether or not any of them put severely overweight employees at a disadvantage in circumstances where the relevant practice cannot be justified.