As a nation, we are fat. Or so we are often told. According to a recent study published in the Lancet medical journal, 67% of men and 57% of women in the UK are either overweight or obese. Whilst this is an alarming statistic in itself, recent legal developments mean that that the size of our stomachs may now have wider implications for employers.
Last week, the European Court of Justice considered the case of Karsten Kaltoft v Billund Kommune, a Danish childminder who alleges that he was dismissed by his local authority due to his obesity. His employer claims that Mr Kaltoft (who weighs about 160kg) was unable to perform his day to day duties, for example being unable to tie a child’s shoe-laces without a colleague’s help. By contrast, last week Mr Kaltoft told the BBC that his size was "no problem" at work.
The question for the ECJ to weigh up is whether Mr Kaltoft’s obesity falls within the definition of “disability” under EU law. If it does, then by dismissing Mr Kaltoft, his employer could be liable for disability discrimination. Undoubtedly, the ECJ’s decision (expected to be published in a matter of weeks) will be significant for employers. It could potentially trigger obligations to make reasonable adjustments, or restricting opportunity to reject job candidates, due to their weight.
Of course, obesity can be a debilitating condition. Equally, it can be a symptom or side effect of another illness which would of itself qualify as a disability. But is obesity in itself a disability? Under the Equality Act 2010, a person is considered to have a disability if he or she has a physical or mental impairment and it has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
Could this apply to obesity? Last year, in Walker v Sita Information Networking Computing Ltd, the Employment Appeal Tribunal ruled that obesity in itself was not a “disability”. However, the EAT did acknowledge that an obese person may be more likely to fall within the definition. For example, diabetes, depression and joint-pain (all associated with and potentially compounded by obesity) may be chronic impairments that have a substantial effect on an individual's everyday life. Therefore, although obesity itself has been rejected by the EAT as a disability in its own right, if the ECJ reaches a different decision, the Equality Act will need to be interpreted and applied very differently.
So what would this mean for employers? If obesity is classified as a disability, it must be approached in the same way as any other physical or mental impairment – i.e. employers will need to exercise caution to ensure that they do not treat an employee less favourably because of their weight. This would certainly extend to an employer’s duty to consider making reasonable adjustments to the workplace and/or working arrangements. Potential issues could include reviewing seating arrangements, access to the workplace and who can use preferential parking spaces (always contentious at the best of times). One can imagine many social and cultural implications for the workforce and a lot of work to be done around training needs etc - employees are, for example, much more likely to sympathise with colleagues who they feel have a disability through no fault of their own, as opposed to others who they think have ‘caused’ their own condition. Claims may well be brought against both employers and fellow employees accused of exacerbating a condition, or of less favourable treatment on account of the individual’s weight.
For the moment, it may simply be a case of watch this space. But regardless of the actual outcome in Kaltoft, employers should give serious thought as to how obesity can approached with both sensitivity and with common sense.