[see Proving Discrimination, The Comparator in Direct Discrimination, Direct Discrimination, Indirect Discrimination, Victimisation, Harassment, How to prepare a Scott Schedule for a direct discrimination claim, How to prepare a Scott Schedule for a victimisation claim, How to prepare a Scott Schedule for a harassment claim, How to prepare a Scott Schedule for a sexual harassment claim, How to ask questions about discrimination at work, How to write a grievance about discrimination]
Do 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. 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 sacroiliac 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 , 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’.
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