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Severe obesity may be a disability

28th July 2014
The Advocate General of the European Court has given the opinion that obesity may in some cases amount to a disability under the provisions of EU law.

This is significant for employers due to the number of people that may be affected by this, and the effect of the duty to make reasonable adjustments imposed by the Equality Act (formerly the Disability Discrimination Act), for individuals that may be classed as disabled as a consequence of this decision.

The case, Kaltoft v The Municipality of Billund, involved a danish childminder.His employment had been terminated due to his obesity. He had a BMI of 54 (generally a BMI figure of 30 and over is classed as medically obese, and 40 and over as morbidly obese). Mr Kaltoft brought a claim in the Danish courts, which referred the issue to the European Courts. The Advocate General has given an opinion on the matter, and the case will subsequently be heard by the full chamber of the European Court of Justice - which usually concurs with the opinion expressed by the Advocate General.

The Danish court which referred the case asked whether obesity falls within the general prohibition in EU law covering all forms of discrimination in the workplace, and wether obesity per se amounted to a form of "disability" within the EU Equal Treatment Framework Directive.

In the main the Advocate General considered the question of whether obesity per se fell within the definition of disability. He pointed out that the definition covers the situation where a physical or mental condition makes "carrying out of a job or participation in professional life objectively more difficult and demanding....." He stated that in those cases "where the obesity had reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or pyschological limitations that it entails, then it can be considered to be a disability." This indicates that those with a BMI of 40 or more may well (or as the Advocate General put it "most probably") be classed as disabled by virtue of the obesity itself, so long as it is severe.This seems obvious when one considers the detrimental effect of obesity on a person's mobility,endurance and mood. However, in the main, obesity itself will not be classed as a disability unless and until it reaches the stage of hindering the person's ability to fully participate in professional life.

The case largely supports the view of the Employment Appeals Tribunal in the case of Walker v Sita Information Networking Computing Ltd, in which case the Judge noted that the correct approach under the UK disability legislation is firstly to consider if the individual has an impairment, and secondly to determine if that impairment is physical or mental. The cause is only relevant insofar as it remains open for an Employment Tribunal, on the evidence in the case, to find that a person does not suffer from a disability if it has no recognised cause. In that case, the EAT noted that obesity is not a disability per se, but it may make it more likely that someone is disabled if they are obese.

Both cases emphasise the need to consider the effect and consequences of the obesity on the individual. Clearly mobility may often be restricted, and increasingly severely for those that are morbidly obese. 

The importance of the case is that employers may need to consider and make reasonable adjustments to the workplace and practices for an employee that is obese, such as providing bigger chairs and desks, car parking close to the entrance to the workplace, reducing any requirements for lifting, more regular breaks due to breathelessnes, etc. Employers should not simply ignore the effects with a view that they are self-inflicted, or that the individual can simply sort it out themselves. Where the duty to make reasonable applies, the onus is always on the employer to be proactive in addressing the issues and making suitable adjustments.

If you need further advice on the issues raised in this article please do not hesitate to contact us at Hallett Employment Law Services Ltd.              

   
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