Discrimination because you are overweight

victimDo you have a disability under the Equalities legislation if you are clinically obese? UK Courts and the European court of Justice say YES, in particular circumstances. A person who is obese will not be considered disabled unless there is a “substantial and long-term impact” on their health because of their weight. A person who falls under this definition, would be classified as disabled under the Equalities Act 2010 which triggers the employers duty to make “reasonable adjustments”.

This was confirmed by the Employment Appeal Tribunal in the case of Walker v Sita Information Networking Computing Ltd[2013].  In this case, Mr Walker weighed 21 and a half stones. He had many symptoms caused by asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains. The symptoms were made worse by his obesity. Mr Walker sued his employer for disability discrimination in the employment tribunal.   The Employment Tribunal (ET) said that he was not “disabled” within the meaning of the Equality Act 2010, because occupational health had not been able to identify a “physical or organic cause” for his conditions other than his obesity. Mr Walker was unhappy with this and took his case to the Employment Appeal Tribunal (EAT).

The Employment Appeal Tribunal said that the ET had made a mistake. The EAT said that in considering whether a person is disabled, the focus should not be on what is causing the person’s symptoms. The focus should be on the effect of the illness on the person’s daily life. Even if that illness or condition is specifically excluded from disability legislation. The EAT provided the example of liver disease as a result of alcohol dependency. The liver disease would count as an impairment even though alcohol dependency is excluded from the definition of disability in the Equality Act 2010. On this basis, the EAT said that Mr Walker was disabled under the Equality Act 2010.

 

In FOA acting on behalf of Kaltoft v Billund Kommune [2014], the Danish Mr Karsten Kaltoft who weighed 160 kilograms was employed as a childminder from 1996 until he was dismissed in 2010. Mr Kaltoft sued his employers in the District Court for unlawful discrimination due to obesity.  The District Court referred four questions about obesity to the European Court of Justice (ECJ). The first three questions asked whether it was unlawful to discriminate on the grounds of obesity, whether any such right was directly applicable, and who had the burden of proof. The ECJ said that obesity alone is not a basis for protection against discrimination, and so they did not have to answer questions 2 and 3. The fourth question asked whether obesity was a disability under EU Directive 2000/78/EC (this is the general framework for equal treatment in employment and occupation). It it was, then how do you determine if an obese person is protected against disability discrimination.

The ECJ said that disability means the health limitations from long-term physical, mental or psychological impairments which hinder the full and effective participation of the person in professional life on an equal basis with other workers. Any person falling into this definition is a “person with disabilities”.  The ECJ said that in the context of obesity, it is irrelevant whether the person concerned became obese due to simple excessive energy intake, in relation to energy expended, or whether it can be explained by reference to a psychological or metabolic problem, or as a side-effect of medication. The notion of disability does not depend on whether it is ‘self-inflicted’, otherwise, physical disabilities resulting from conscious and negligent risk-taking in traffic or in sports, for example, would be excluded from ‘disability’.

 

What does this mean?

  1. Obesity is not in itself a “disability” for the purposes of the Equalities Act 2010.
  2. It is the impairments caused by the obesity that must be considered.
  3. The impairments must be substantial and have a long-term impact such that the person cannot participate fully at work as other people do.
  4. Employers have a duty to make reasonable adjustments for disabled employees no matter the origin of the disability, or whether the person contributed to it.

News archives about obesity discrimination

Personnel Today – First UK tribunal finds worker’s obesity eligible for disability protection

Independent – Obesity could be considered a disability after landmark EU ruling on workplace discrimination

The Guardian – Severe obesity is a disability, European court adviser rules

 

Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

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