Obesity is now a disability?
Have you seen in the news that obesity is now considered to be a disability? That means, in some cases, obese employees will have the same employment protection as other disabled employees.
It must be emphasised that discrimination on the grounds of obesity on its own is not itself unlawful. This question was considered recently by the European Court of Justice (“ECJ”). The matter concerned Mr Kaltoft who was a clinically-obese childminder for a local council in Denmark. He was dismissed due to redundancy; he alleged that obesity was a factor and brought proceedings.
The ECJ held that obesity itself cannot be regarded as a ground for protection against discrimination. So, just because someone is obese does not mean they are disabled.
Another question, however, related to whether obesity could be deemed to be a disability under EU Directive 2000/78/EC (the general framework for equal treatment in employment and occupation) and if so, how the ECJ were to determine if an obese person is protected against disability discrimination.
The ECJ held that in the event that “under given circumstances, ‘obesity’ entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one”, it could be a disability. The origin of the disability, or contribution to it, were irrelevant.
What this means is that is not the cause of how someone came to be obese but the effect of the obesity has on a worker or employee on account of, say;
- Their reduced mobility
- The onset of medical conditions that prevents that person from carrying out work or causing discomfort when exercising professional activity.
It is a matter for national courts (e.g. Employment Tribunals) to determine whether the conditions of being obese to be a disability are met. Therefore, a worker with long-term obesity might be regarded as disabled.
Therefore, it is important to consider for example, making reasonable adjustments (as you would for another disabled employee) who is unable to carry out their duties due to a long-term medical condition or conditions (regardless of whether such conditions were caused by obesity), or of being careful not to otherwise discriminate against your ‘larger’ workforce.
Each case would be decided on its merits and one cannot assume that all obese people have an onset of medical conditions and thus would have problems in their professional life (as that in itself could be considered to be discriminatory should they be treated less favourably as a result).
Should you require employment law advice on this matter, please contact us or call our 24-hour Advice Line.
By Jonathan Melia