CIPD: “Fears of ‘profound’ effect as ECJ considers redefining obesity as disability. The outcome of a landmark legal case being decided (Thursday 12 June) on whether obese people should be automatically defined as having a disability, could have serious implications for UK employers, experts warn.
The case, being heard by the European Court of Justice, is being brought by 25-stone Danish child minder Karsten Kaltoft, who is contesting being sacked by his local authority for not being able to perform his duties because of his size.
If the court rules in his favour, UK employers could soon have to ensure that any employees who are obese receive the same protections from discrimination as those already protected on the grounds of age, sex or ethnicity.
This would include having to find ways to accommodate obese workers in a way that doesn’t disadvantage them to non-obese colleagues.
According to Audrey Williams, partner and head of discrimination at Eversheds LLP, the effect on employers could be “profound.” She said that as well as employers having to prevent treating employees less favourably, they would also have to “rethink many of their working policies”
“Employers would have a duty to make reasonable adjustments to the workplace or working arrangements,” she said. “This might include a review of where the employee is located and their seating arrangements, or even preferential access to car parking.”
In the UK, a quarter of adults are already clinically obese, while 64 per cent of adults are either obese or overweight.
Currently, anti-discrimination law only protects people from discrimination against physical and mental conditions that may have arisen from obesity, and not the fact that they are the physical size they are. A positive rule would challenge this.
There is some precedent. A 2012 UK employment tribunal case (Walker vs Sita), ruled that while obesity was not yet considered to be a disability in the strict sense of the 2010 Equality Act [which defines it as ‘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’], the fact that the worker in question had 16 medical conditions compounded by obesity meant that it concluded an obese person would be more likely to fall under the banner of disabled.
Glenn Hayes, employment law partner at Irwin Mitchell, said: “If an obese person is deemed disabled, the duty to make ‘reasonable adjustments’ kicks in.” He added: “Employers who make adverse assumptions about a ‘fat’ candidate or employee’s commitment or ability to perform the job, based purely on an individual’s weight, could be deemed to have directly discriminated against him or her.”
The US Equal Opportunity Commission already defines obesity as being a disability, under the Americans with Disabilities Act Amendments Act. In a recent case there, a Texan employee who weighed more than 48 stone received $55,000 in compensation for being dismissed.
So far, disability groups have been unwilling to go on record to give their views on it. Charity Disability Rights UK said it wasn’t a topic it wanted to comment on, while Scope said it was still thinking what its position is. Scope did, however, ask its Twitter followers to react to this, and it says that so far, the resounding response from people is that obesity should not be considered a disability.
Last year it was reported that more than 7,000 UK adults are being paid sickness benefits because they are too fat to work. Department of Work and Pensions statistics show the total number of obesity claims had doubled between 2010-13, to 7,080.