Catherine Rayner is a barrister at 7 Bedford Row specialising in employment and discrimination law. Click here to view the article.
With the NHS estimating that one in four adults in the UK are obese and at risk of contracting conditions such as bowel and breast cancer and type 2 diabetes, the need for health organisations to address the problem is self-evident. But obesity could also become a major issue for employers if the European Court of Justice (ECJ) decides that it is a disability for the purposes of EU discrimination law.
The court is currently considering the case of Karsten Kaltoft v Billund Kommune, which was referred by the Danish courts, and heard on 12 June 2014. The case was brought by Kaltoft, a child minder who weighed 25 stone. He was dismissed from his post, which he had held for 15 years, because his size meant that he could no longer carry out many of his duties, including tying children’s shoelaces.
It will be several weeks before the ECJ’s decision is known, but if the court rules that in sacking Kaltoft because of his obesity his employer had unlawfully discriminated against him, the implications for UK employers could be far-reaching.
The EU’s Employment Equality Framework Directive, which outlaws discrimination in employment on the grounds of disability, age, religion or belief and sexual orientation, does not define ‘disability’. However, in the case of Chacon Navas v Eurest Collectivades SA, decided in 2006,the ECJ described disability as a limitation resulting from physical, mental or psychological impairments, which hinders the participation of the persons concerned in professional life.
UK tribunals have also considered the meaning of “disability”. The Employment Appeal Tribunal ruled last year in Walker v Sita Information Networking Computing Ltd that obesity did not itself amount to disability in UK law, although the effect of associated conditions, such as heart disease, could mean that an obese person is disabled.
If the ECJ decides that obesity is indeed a disability, the number of working people classed as disabled will rise significantly. Most medium and large employers will have obese disabled people in their workforce, and may need to refine contractual terms or policies dealing with health and fitness, equal opportunities and dignity at work. Pre-employment health questionnaires may also need amending. But it is the obligation to make reasonable adjustments that is most likely to be affected by the judgment.
Of course not all employees classed as obese have health problems. But if obesity becomes an automatic “disability” they would be entitled to ask for reasonable adjustments under the Equality Act 2010 if any physical aspect of the workplace, the job or the organisation’s policies and practices placed them at a substantial disadvantage. At the moment, such adjustments are only required under section 6 of the Act if employees have a physical or mental impairment that has a substantial, long term effect on their ability to carry out-day-to day activities.
Adjustments for obese employees may include reallocating duties to others or assisting them with lifting, carrying or other physical tasks. In a case such as that of the Danish childminder Kaltoft, another member of staff, if available, could be asked to tie children’s shoelaces. An employee with mobility difficulties may be given a work station that did not require walking between buildings. It may also be necessary to reassess furniture and allocate car parking closer to a workplace. Perhaps most importantly, health and safety policies and the risk assessments underpinning them would have to take account of the difficulties obese employee might face if buildings had to be evacuated in the event of fire or other hazards.
Employers who currently carry out risk assessments, and make reasonable adjustments for disabled or unwell employees, probably already apply the same policies to obese employees, if they have impairments affecting their ability to walk upstairs, for example, or to carry heavy loads.
The best advice for employers until the ECJ gives its judgment is to ensure their existing policies and procedures are robust. Employers would also do well to consider how to help employees adopt a healthy lifestyle and so avoid the ill health associated with obesity – whether or not that is classed as disability.
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