Are obese employees protected under the Equality Act?

Obese Employees and Disability

Over the last 18 months the appellate courts have considered the question of whether or not an obese employee can rely upon the disability discrimination provisions in the Equality Act. Now the Advocate General has issued an opinion in advance of the European Court of Justice’s decision in the Kaltoft case.

Is obesity a disability in its own right?

Previously the Employment Appeal Tribunal has said that obesity is not a disability in its own right, but that it might make it more likely that a person qualifies as disabled (because of a substantial adverse effect on the persons abilities).

The Advocate General’s opinion broadly mirrors this approach, saying that where obesity has reached a degree that it hinders full participation in professional life it can be considered a disability.

We will have to wait some months for the ECJ’s decision, but it is highly likely that it will be in a similar vein.

What does this mean?

In practical terms is means that employers must be alive to the possibility that obese employees (e.g. those who have a body mass index of 40 or more) will have a right to:

  • reasonable adjustments being made to counter the adverse effect/s of their obesity
  • protection from harassment and other forms of less favourable treatment because of their condition
  • compensation for injured feelings and lost earnings if their rights are infringed

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