Obesity: Is It a disability or not? New discrimination law?

A case is currently being considered by the Court of Justice of the European Union concerning obesity and a ruling is expected shortly. Whichever way the Court decides, this will be an important decision for UK employers and employees. Below we confirm the current UK law on this tricky issue and the reasons this might change shortly.

Obesity under UK law

Under the Equality Act 2010 a person is considered to have a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. A person who has a disability has protection under the Equality Act in various ways to prevent unlawful discrimination against them. In the workplace this includes protection from being dismissed solely because of their disability, and the right to have reasonable adjustments considered and made by their employer to enable them to work.

The current position under UK law is that obesity itself is not a qualifying disability for such protection from discrimination.

This was confirmed in the most recent reported decision on obesity by the Employment Appeal Tribunal (EAT). It ruled last year in the case of Walker v Sita Information Networking Computing Ltd that health complications which are caused by a person’s obesity may constitute disabilities but obesity is not of itself a disability.

This was a complicated case because of the medical evidence but the facts help in understanding how obesity is treated by the Tribunals at present. Mr Walker brought a claim of disability discrimination against his employer. He was obese, weighing 21.5 stone. He suffered from a constellation of symptoms causing significant difficulty to his day-to-day life, including asthma, chronic fatigue, knee problems, bowel problems, anxiety and depression. The EAT held that these symptoms could not be attributed to a recognisable pathological or mental cause and so could not constitute the physical or mental impairment which is necessary to qualify as a disability. The symptoms were instead regarded as a “functional overlay” which was worsened by Mr Walker’s obesity.

The EAT considered that the purpose of the definition of disability was not to confine an impairment to that which can be shown to have a medical label, so as to be a recognised physical or mental condition. Rather, it is the impairment itself which should be considered instead of the possible cause of that impairment. This is so, even if the cause of the impairment is a condition which is excluded from the definition of disability, as with obesity.

Therefore, although obesity itself is not a disability, being obese may make it more likely that someone is disabled because it may have caused or contributed to some other physical or mental impairment. That is the only relevance of obesity to a qualifying disability. So if a person is obese this may provide evidence which may make it more likely that an Employment Tribunal would conclude that the individual suffers from an impairment and so is disabled.

If, for example, a person suffers from obesity which gives rise to impairments such as mobility restriction and breathing difficulties to the extent that the person cannot walk more than 50 yards without stopping to rest, this is the effect which must be considered for the purpose of assessing disability, not the person’s underlying obesity.

Development in European law

Earlier this month the Court of Justice of the European Union (CJEU) heard a case referred by Denmark (Karsten Kaltoft v Billund Kommune) which may turn the current position under UK law on its head.

The case concerned Mr Kaltoft, an obese (25 stone) child minder employed by a local authority. He claimed that he was dismissed by his employer due to his weight. The local authority defended this, asserting that he was dismissed due to a decline in the number of children but that, at any rate, Mr Kaltoft was unable to perform his duties due to his size, citing the fact that he was unable to tie a child’s shoelaces.

The Danish courts asked the CJEU to determine whether obesity should be considered to be a disability under the European Employment Equality Directive, which prohibits discrimination in employment on the grounds of disability. The case was heard on the 12 June 2014 but the CJEU’s decision is not expected for some weeks. When the decision is released it will be binding across the EU, including the UK.

Potential implications

An estimated 25% of the adult population in the UK is obese and over 50% are overweight. Obesity is also rising across all European countries. If the CJEU determines that obesity is a qualifying disability the implications for both employers and employees will therefore be significant in the UK and indeed across Europe.

In the event of such a ruling, employees who are obese will have the same legal protections as those with other physical or mental impairments, including protection against unfavourable treatment or dismissal on the grounds of their size.

Employers would have a duty to make reasonable adjustments to the workplace or working arrangements to accommodate obese employees. This might include taking account of the requirements of obese employees when designing the office layout or when considering which tasks, such as those involving physical exercise, are assigned to such employees.

The possibility of such a ruling, together with the latest figures on the rapidly rising levels of obesity across Europe, has re-ignited the debate as to whether obese employees should have such protection. One key view emerging is that obesity is a lifestyle choice and one which can usually be avoided, so is different to other long term impairments. As such, it should not count as a disability but employers should instead assist obese employees by providing a healthy work environment with access to support, to reduce their obesity, and employees should be expected to co-operate with their employers in dealing with it.

Is it likely that obesity will be held to be a disability by the CJEU? Possibly not. Some individuals who are classified medically as obese do not suffer long term physical or mental impairments at the outset, so should they be classified as disabled and have the protection afforded by that?

Impairments arising from or caused by the underlying obesity can bring a person into the definition of disability in any event so they would gain protection from discrimination, following the decision in Walker. The CJEU may well adopt a similar approach and rationale to the EAT in Walker. So it appears less likely that the CJEU will rule that obesity on its own is a qualifying disability, depending on the medical evidence available to that Court. It is hard to see how they could so rule without adding some additional criteria which must be present for obesity to be a disability, such as identifiable long term physical or mental impairments – but this would make it redundant to classify obesity as a disability at all.

The ruling is awaited with keen interest and will be reported in GD Online.

This article was written by Alison Downie, Partner, Employment with assistance from Trainee Solicitor, Zachary Brown.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 020 7404 0606.