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Wake-up call: It's a thin line between obese and disabled

20 February 2015

Employers should be aware that if severe obesity stops an employee carrying out their job, it can be considered a disability, says Katee Dias

The problem

My employee is significantly overweight. He says he is protected from discrimination on the grounds of his obesity. Surely this isn't the case?

The law

The good news for employers is that there is no free-standing protection against discrimination on the grounds of obesity. The bad news is that the employee may be protected under disability discrimination legislation if the obesity is long-term and it substantially affects his or her ability to carry out work.

This question was at the heart of a recent European case called FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund, heard by the Court of Justice of the European Union in December 2014.

It held that whether someone who is obese can be classified as disabled will depend on the particular circumstances, but it was a possibility where the person suffers from a long-term physical, mental or psychological impairment that may hinder their full and effective participation in professional life on an equal basis with others. Although this is a Danish case, its application is still relevant.

In England and Wales, the Equality Act 2010 states that a person is disabled if they have a physical or mental impairment which has a
substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Therefore, employees who are severely obese or who suffer other conditions as a result of them being overweight (such as diabetes, depression or back pain) could well fall within the definition of ‘disability' and be protected from discrimination and harassment.

Expert advice

The first step is to assess whether your employee actually has a disability for the purposes of employment law. The following questions should therefore be considered:

• Do they have a physical or mental impairment? It does not matter that the origin of the impairment is obesity. The fact they suffer an
impairment is sufficient.

• Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?

• Is that effect substantial (meaning that it is more than minor or trivial)?

• Is that effect long term (namely, it is likely to last for at least a year or for the rest of the person's life)?

If the answer to each of the above is yes, then the employee is protected by disability discrimination laws. If this is the case, you should keep in mind the various obligations and protections, which include:

• The employee's right not to be discriminated against because of this disability (both directly and indirectly, as well as from something arising in consequence of their disability);

• The employer's duty to make reasonable adjustments to premises or working practices to help disabled employees; and

• The employee's right not to be harassed, that is to say being subjected to conduct relating to the disability which has the purpose or
effect of violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Checklist

• Just because a person is very overweight, does not mean that they will be ‘disabled'. Cases have to be assessed on their own specific
facts.

• It does not matter whether the obesity is caused by excessive eating or some underlying medical condition. However, if it is the latter,
it is more likely that the individual will be classed as disabled.

• If they are disabled, consider the employer's duty to make reasonable adjustments. For example, you may need to provide a more suitable desk chair or allow them to work from home if they have difficulties travelling.

• Remember that comments and jokes about someone's size could constitute harassment. Put an end to any such banter.

Beware

There is no cap on the compensation that can be awarded in a successful disability discrimination claim. Any award of damages will be
based on the employee's loss of earnings as well as injury to their feelings.

Contact Katee Dias is a senior solicitor at Goodman Derrick LLP kdias@gdlaw.co.uk

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