Obesity can be a disability

The case of Kaltoft v Billund

After some speculation, the decision is in: the effects of obesity can sometimes amount to a disability.

The European Court of Justice (ECJ) reached this conclusion following a referral from a Danish court in Kaltoft v Billund. The case concerned a childminder who claimed that his obesity was a factor in his redundancy.

What the ECJ has said is that if someone’s obesity causes them to have a physical or mental impairment which satisfies the legal definition of disability, they could be protected by discrimination legislation. So obesity, by itself, doesn’t confer legal protection, but its effects could render a person disabled for employment law purposes.

Not every obese person will be disabled. But those who are unable to participate in professional life on an equal basis with other workers could well be. This will have to be judged on a case-by-case basis, focusing on the effect of a person’s obesity, rather than the cause or extent of the obesity itself.

What does this mean for employers?

Well, you may need to become more aware of the way in which obesity affects your workers. You might look to take greater steps to promote healthy lifestyles for the obese. And, on a legal as well as a practical and mindful level, consider making reasonable adjustments to working conditions so that overweight workers are not at a disadvantage compared with other workers. It could mean reconfigured workstations, parking spaces or new working patterns; the solution will be dictated by the circumstances. Ultimately, it’s about levelling the playing field.

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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