When considering if a worker has a disability 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)?
You can read more details about disability here.
Is obesity classed as a disability?
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, wasn’t 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 constitute a disability under the Equality Act.
As a result, from 2013, the complications caused by obesity could be defined as a disability if they are of sufficient duration (more than one year) and substantially impaired the employee’s day-to-day activities.
In July 2014, however, the advocate general of the European Court of Justice offered his opinion on whether obesity is a disability.
This occurred because the European Court was asked for legal clarification of whether obesity is a disability following the case of 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 discriminated against on the basis that obesity is a disability.
The issues were raised before the European Court in June 2014 and the advocate general issued an ‘opinion’ on the case.
In summary, the AG said that while obesity itself isn’t a category of disability (and so does not 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 severe, extreme or morbid obesity will create “limitations” that will amount to a disability in the legal sense (limitations in 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”, a psychological or metabolic problem, or side-effect of medication. Even 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.
How does this affect the UK?
The UK’s Equality Act 2010, which includes our disability laws, derives from the European Equal Treatment Framework Directive. Therefore any European judgement will affect the UK.
25% of the UK population is currently believed to be obese, with 4.5% of the population believed to be morbidly obese.
The ‘opinion’ appears to only apply to those who are severely obese not those who are identified only as clinically obese. So, UK Courts will have to work out whether other conditions associated with obesity – breathlessness, joint pain, general mobility issues – are also sufficiently disabling.
Employers 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, as it means they have obligations to make reasonable adjustments in the workplace to help accommodate employees, under the Equality act, where someone has a disability. More details about reasonable adjustments are in our guide here.
The advocate general in his ‘opinion’ went on to say that whilst employers aren’t obliged to continue employing someone who is unable to carry out the essential functions of their job, employers are required to make reasonable adjustments unless the burden would be disproportionate (burden of costs etc).