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Eat Cake - Receive Enhanced Employment Rights! Severe Obesity is Potentially the New Disability!

UK waistlines are getting bigger. Type 2 diabetes is on the rise. The strain on the NHS through the obesity epidemic is regularly featured in the media. However, a recent opinion of the Advocate General to the ECJ suggests that the impact on employers may also be about to increase.

The Equality Act provides for the protection of disabled employees. In the UK obesity per se has not been considered a disability - Walker v Sita Information Networking Computing Ltd 2013 EAT. However, if it resulted in a consequential physical impairment, eg diabetes, and the condition had a substantial, long term, adverse effect on their day to day activities, then the individual could receive protection under the Equality Act if deemed to be disabled. Type 2 diabetes can give rise to a number of complaints that could fall into this category depending on the extent of the condition. Blindness, severe problems with feet, including amputation in serious cases, and heart conditions can all result. However, for many, the negative repercussions of the illness can be managed through diet and exercise.

In the UK most self-inflicted ailments are specifically excluded from the protection of the Equality Act. Alcoholism, addiction to cigarettes, voyeurism, body piercings and tattoos etc. are all excluded. No doubt this stems from the fact that such issues are all deemed to be within a person's control (although alcoholics will no doubt argue to the contrary). However, should the condition give rise to other medical issues, e.g. liver failure or depression, whilst the alcoholism in itself is not a disability, the resulting medical condition could well be. Over eating has until now been targeted with the same approach. After all, why should an employer have to make adjustments because someone cannot exercise the willpower to prevent themselves from indulging? Shouldn't they take responsibility for their own actions? As current statistics indicate that 64% of the UK adult population is either overweight or obese with a rising trend, the ramifications for employers of obesity being found to be a disability are potentially great.

Severe obesity can be a disability

The ECJ is not obliged to follow the Advocate General's opinion, but usually does so. Whilst he has indicated that it is not possible to infer a general prohibition on discrimination due to obesity he has indicated that obesity may meet the definition of disability if it is severe and hinders full participation in professional life. In the Danish case of FOA, acting on behalf of Karsten Kaltoft v Billund Kommune (C-354/13) a public sector employee was dismissed from his role as a childminder which he had held for 15 years, he argued, because of his weight. He weighed 25 stone and his size meant that he could not perform many of the duties required, including tying children's shoelaces. He was represented by his union, FOA.

European legislation prevents against discrimination on the grounds of disability, although it does not define what amounts to a disability. He argued that there was a general prohibition on discriminating against obese individuals (which was rejected) and that obesity could amount to a disability and thus such individuals would be protected on that basis (which the Advocate General agreed with). Accordingly, if followed it will not be necessary for the employee to have to demonstrate a consequential medical condition as a result of being overweight that amounts to a disability. If the fact he is severely obese substantially affects his normal day to day activities, the fact he is grossly overweight in itself can amount to a disability.

How obese do you have to be to qualify?

The Advocate General referred to the World Health Organisation's obesity 'scale'. His view was that mere obesity is unlikely to hinder professional life i.e. Class I on the WHO scale (a BMI of 30 to 34.99) or those in class II (a BMI of 35 to 39.99). However, his view was that those with a BMI of over 40 and who are thus considered morbidly obese are more likely to have problems with mobility, endurance and mood and could potentially be classed as disabled in such cases. He rejected the principle that if it was self-inflicted it should not be covered on the basis that people injured through undertaking riskier sporting activities would also be prevented from being considered to be disabled if such an interpretation were adopted.

If his view is followed, the effect for employers is far reaching, particularly if waist lines continue to rise and the number of people falling into the morbidly obese category increases. However, employers can breathe a sigh of relief that being overweight in general does not automatically qualify as a disability given that would cover most of the population.

So what adjustments do I have to consider?

If the employee is disabled, the employer shall be required to consider making reasonable adjustments. This could include reserving parking near the office so that larger individuals do not have to walk so far, transferring duties that involve bending over, lifting and carrying to those more able to do so and buying specialist furniture that can accommodate the additional weight of the individual. The jobs offered will have to take into account the limitations caused by the disability which could mean having to remove more physical duties. This in turn may perpetuate the problem as a more sedentary lifestyle may in turn make the problem worse!

Regard will also need to be had when carrying out risk assessments and in particular the health and safety issues associated with the disability. In the same way that it may be considered advisable to locate disabled individuals in a wheelchair on the ground floor for ease of exit in an emergency, similar considerations would potentially apply in locating larger individuals on the ground floor so that in the event of a fire evacuation or accident due to the issues involved in carrying them down stairs and out in the event of a fire if injured. This will need to be determined on a case by case basis as not everyone is affected alike and not everyone who is overweight or obese will qualify as having a disability.

In contrast to most other disabilities, where the individual has an impairment that is unlikely to improve, in the case of obesity there is also the argument that if the individual lost weight they may no longer be classed as disabled. Given the definition requires the impairment to be long term i.e. for 12 months or more or the impairment to last longer than 12 months or to be likely to recur, this creates a multitude of additional issues. Can it be argued that if the individual had helped themselves and gone on a diet it would not have been likely to last 12 months? If they are a yo-yo dieter and would not have satisfied the definition of disabled in the last 12 months could the employer argue they are not covered by the legislation? If they are planning to go on a diet or have weight loss surgery so that they would no longer be morbidly obese and the symptoms reduce or disappear could a defence be mounted on that basis?

What is clear is that employers may in due course have an additional concern to take into account when dealing with and managing staff. Obesity does not fit in with the current legislation easily. However, for the record - sticking pies on the staff canteen menu is unlikely to be considered a reasonable adjustment and you may wish to embark on a healthy eating campaign at work to stop those overweight employees creeping towards the morbidly obese category.

For further information in relation to this article or for any other employment law query, please contact Angela Gorton.

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