Is obesity really a disability?
Obesity – a growing concern
Obesity levels in the UK have risen dramatically over the last quarter of a century. Statistics suggest that 25% of the current UK population is obese. Changes afoot in the law of employment suggest that obesity may become an issue for employers.
The landmark case on Obesity Discrimination
The case of Kalltoft v Municipalty of Billund caused the Danish Courts to ask the European Court of Justice (ECJ) whether:
- EU law prohibits discrimination on the grounds of obesity, as it does in cases of religion, sex, age etc; or
- Obesity is a form of disability in itself under the Equal Treatment in Employment Directive.
The case involved a Danish childminder who claimed that his employer had dismissed him because of his obesity.
The ECJ’s decision
The Advocate General (AG) has provided a non-binding decision that appears to follow the recent decision of the UK Employment Appeal Tribunal (EAT) in the case of Walker v Sita Information Networking Computing Ltd. It is likely that the ECJ will follow these decisions and UK courts and Tribunals will become bound to follow it.
The AG decided that whilst obesity is not a disability per se, severe or morbid obesity may amount to a disability for discrimination law purposes. The previous EAT decision in Walker held that an obese person is likely to suffer from side effects that could amount to a disability.
A disability under the Equality Act 2010 requires an individual to show that he or she has a physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities.
Both of the decisions of the EAT and AG suggest that the obesity in question would need to be severe enough to significantly affect the individual’s professional life. The AG suggested that a BMI of over 40 would fall into this category.
If the ECJ follow these previous decisions, then employees will have the right not to be treated less favourably on the grounds of their weight. Employers will therefore be under a duty to make reasonable adjustments for obese employees.