Obesity can be a Disability in certain circumstances

In December 2014, the European Court of Justice ruled that obesity can be a disability in certain circumstances.

However, they didn’t declare obesity to be a protected characteristic, against which all discrimination is prohibited. Press coverage following this announcement was slightly hysterical in some quarters (as you would expect). The Daily Mail said:

“Hard-pressed businesses face costly bills after European judges controversially ruled that obesity can be classed as a disability. Companies will be forced to make concessions for overweight staff that could include extra-large office furniture, medical advice or exercise facilities. Firms could also face expensive compensation claims for discrimination if they sack someone for being overweight.”

And The Sun said:

“The [court] ruled that British firms can be sued if they fail to allow for the “disability’ of obese staff. Disability, surely, is an affliction beyond that person’s control. The result of an accident, a genetic defect, mental problems, that kind of thing. Not a liking for takeaways and sofas.

“Yet companies must now give fat workers parking spaces near the office to save them having to walk far. The EU is telling millions of fatties it’s not their fault and that someone else will pay to save their poor legs. We ought be able to laugh at this madness and forget it. But we can’t.”

Boris Johnson, the then Mayor of London, said it’s ridiculous to class obesity as a disability during a Twitter Q&A, claiming it insults those he described as being “truly disabled”.

Even Jane Deville Almond, chairman of the British Obesity Society, said obesity shouldn’t be categorised as a disability. She said:

“I think the downside would be that if employers suddenly have to start ensuring that they’ve got wider seats, larger tables, more parking spaces for people who are obese… we’re just making the situation worse. [It is] implying that people have no control over the condition, rather than something that can be improved by changing behaviour.”

However, when considering if a worker is disabled or not – for the purposes of being covered by the Equality Act 2010 – employers must consider the impact of any physical or mental impairment on the worker’s “ability to carry out normal day-to-day activities”.

If the answer is ‘yes’ to the following points then a worker is likely to be described as disabled for these purposes:

• Does the worker have a physical or mental impairment?
• Does that impairment have a negative impact on the worker’s ability to carry out normal day-to-day activities?
• Is the negative impact substantial?
• Is the impact long term (i.e. likely to continue for a year or more)?

How has the issue of obesity got to this point?

In the 2013 Walker v SITA Information Networking Computing Limited case, the Tribunal found that Mr Walker, who was clinically obese and suffered from a number of medical complications, was not disabled as defined in the Equality Act.

They felt his condition was a “species of self-harm on a par with alcohol or drug addiction”. The Employment Appeal Tribunal didn’t agree and said the cause of his medical conditions was irrelevant. Instead, what was relevant was that Mr Walker was suffering from a number of physical and mental conditions, which caused him impairments extreme enough to be classed as disabilities under the Equality Act.

As a result, from 2013, the complications caused by obesity could be defined as a disability if they’re of sufficient duration (more than one year) and substantially impaired the employee’s day-to-day activities.

In July 2014, the Advocate General of the European Court of Justice offered his opinion on whether obesity is a disability.

His comments came after the European Court was asked for legal clarification of whether obesity is a disability following the case of a Danish childminder, Kaltoft, who was dismissed from his job with a Local Authority after 15 years. During this time, he was obese and had unsuccessfully attempted to lose weight. His employers, Billund Municipality, claimed he had been released due to a “declining number of children”. Mr Kaltoft claimed he had been dismissed because of his size and therefore discriminated against, on the basis that obesity is a disability.

The issues were raised before the European Court in June 2014 and, pending the court ruling, the advocate general issued an opinion on the case.

His position was that while obesity itself isn’t a category of disability (and so doesn’t attract automatic discrimination protection), there will be circumstances where the impact of significant obesity will to lead to disability.

He highlighted morbid obesity as an example (those with a Body Mass Index of 40 or more) where the obesity has reached a point which “plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails”.

In the AG’s view, only obesity considered severe, extreme or morbid will create “limitations” that will amount to a disability in the legal sense (limitations on mobility, endurance and mood).

He emphasised that it’s irrelevant whether the obesity is caused by “simple excessive energy intake in relation to energy expended” or by a psychological or metabolic problem or side-effect of medication. If a disability is self-inflicted, this doesn’t prevent it being a protected disability – the focus has to be on the effect, not the cause.

In December 2014, the EU’s highest court ruled that obesity can constitute a disability when it “hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers”. This ruling is binding across the whole of the EU.

They went on to say:

“Such would be the case, in particular, if the obesity of the worker hindered that participation on account of reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.”

The EU left the Danish Court to decide whether Kaltoft’s obesity falls within the definition of disability. Their ruling came in 2016, when the courts decreed that his obesity didn’t constitute a disability, given that his obesity hadn’t prevented him from performing his job like his fellow employees.

How does this affect UK businesses?

The UK’s Equality Act 2010, which includes our disability laws, derives from the European Equal Treatment Framework Directive. This judgement therefore affects the UK, although it’s unlikely there’ll be any domestic legislative change.

26% of UK adults were classified as obese in a 2016/17 study by the NHS, and close to five million people are projected to be diagnosed with morbid obesity in the next two decades.

As things stand at the moment, UK Courts will have to work out whether other conditions associated with obesity – breathlessness, joint pain, general mobility issues – are also sufficiently disabling.

Employers will therefore need to tread carefully when disciplining or dismissing an overweight employee – and take steps to understand any underlying medical conditions or associated conditions, on an individual, case-by-case basis. Similarly, it may be unlawful to reject a job applicant simply because they’re overweight.

Practically, this also affects employers, since they have to make reasonable adjustments in the workplace to help accommodate employees, under the Equality Act, where someone has a disability. This could include purchasing new, specialist, office furniture, providing parking spaces closer to the building and altering recruitment and training procedures.