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Cathy Donald, a solicitor practicing in our Employment Law team, discusses the developing law on protection for obese workers following the decision by the European Court of Justice in the case of Kaltoft v Kommunernes Landsforening C-354/13.
The question of whether obesity qualifies as a disability requiring protection under the law is both current and controversial. This debate has now moved into the arena of employment law with some significant decisions coming both from European and UK courts in recent weeks.
The law does not protect an individual from discrimination (in the context of employment or otherwise) on the basis of their obesity. However, if the effects of that obesity amount to a disability, the situation is different, and the individual may find protection under UK legislation. A recent case from Europe has created headlines (and some terrible puns) and both employers and employees are asking whether the law is moving closer to protection from disability on grounds of obesity.
Mr Kaltoft was a child minder in Denmark who was made redundant in 2010. He claimed that he was selected for dismissal because he was obese, and that his dismissal was therefore an act of unlawful discrimination. In order to succeed with this claim, he was required to persuade the court that obesity could amount to a disability. The European Court of Justice confirmed that Mr Kaltoft’s obesity (or at least the effects of his obesity) could amount to a disability if the established test for disability was satisfied. That test is whether the individual suffers from a “limitation which results from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
In reality, the Kaltoft judgment does not significantly change the legal position in the UK. Under the relevant UK legislation, disability is defined as any physical or mental impairment which has a substantial and long-term effect on a person’s ability to carry out normal day-to-day activities. This broad definition allows for the possibility that the effects of obesity might result in an individual being classed as disabled under the legislation and thus protected from discrimination.
As a result, the general approach of UK courts and tribunals to date has been to regard the effects of obesity on an individual as capable of bringing them within the scope of protection under disability discrimination law (Walker v Sita Information Networking Ltd ). However, the more recent case law is perhaps a step further along the road towards the recognition of obesity itself as a disability and it also acts as a reminder to employers to consider the possible claims which might be brought by obese employees or workers.
Two particular risks for employers stand out. Firstly, an employer may be required to make reasonable adjustments to remove any substantial disadvantage to obese employees which results either from the physical working environment or because of business policies or practices. Failure to make reasonable adjustments to remove this disadvantage could result in a claim of discrimination. Secondly, employers need to be mindful of the risk of obese employees being harassed by other members of staff, which could result in a claim against the employer, against the individual employee, or both.
One commonly-voiced objection to the idea that obese people should be protected from discrimination is that obesity is generally the result of poor lifestyle choices by the individual, for which the individual is responsible. Perhaps, as suggested by Sean Jones QC, the question of fault is irrelevant – if an individual lost their legs in a car crash, most people would agree that they should be protected from discrimination on grounds of their disability, whether or not they may have been responsible for the accident. Whatever your view, this argument was considered by the ECJ in Kaltoft and rejected. The court emphasised that the cause of the impairment is not relevant and that the concept of disability “does not depend on the extent to which the person may or may not have contributed to the onset of his disability”.
While it is not yet the case that obesity should be regarded as a protected characteristic alongside those familiar characteristics of sex, race, religious belief etc, we are certainly now in a position where employers need to be aware of their duty to ensure that obese employees are accommodated within the workplace and are protected from harassment on grounds of their condition.
The Northern Ireland Industrial Tribunal has very recently upheld a claim of harassment by an employee who was subjected to negative comments by a colleague because of his weight (Bickerstaff v Butcher 00092/14IT). Mr Bickerstaff’s colleague said that Mr Bickerstaff was “so fat that he could hardly walk” and also said that he was “so fat that he would hardly feel a knife being stuck into him”. The Tribunal expressly followed the ECJ decision in Kaltoft and stated that the claimant has been harassed “for a reason which related to his disability, namely his morbid obesity condition”.
At ELP Arbuthnott McClanachan we can provide practical and straightforward advice for employers on this evolving area of law. We can also advise employees who believe that they are being subjected to poor treatment at work as a result of their condition. Whether you are an employer or an employee, if you would like to take some advice on this topic, please contact one of the solicitors in our Employment Law team on 0131 554 8649 or email us at firstname.lastname@example.org for a no-obligation discussion.
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