Obesity is a huge issue worldwide, with more and more workers every year considered to be obese. Recent statistics suggest that within the UK 24.4% of men and 25.1% of women are deemed to be obese and more than half of the population overweight.It is estimated that the figures will continue to increase. This may have significant implications for businesses and employers, particularly in light of the recent case law in this area.
On 18 December 2014 the European Court of Justice (CJEU) ruled in Kaltoft v Municipality of Billund on questions referred by the Danish court regarding the extent to which obesity may be considered a disability. It ruled that:
(a) there is no general prohibition on discrimination on the grounds of obesity; and
(b) that whilst obesity is not in itself a disability, it can amount to a disability if it entails a limitation resulting from a long-term physical, mental or psychological impairment that renders impossible or hinders an individual’s full and effective participation in their professional life on an equal basis with other workers.
In this case, Mr Kaltoft’s obesity could potentially amount to a disability, and moreover, may be protected by discrimination legislation but that was a matter to be determined by the national court.
The legal definition of disability in the UK can be found in the Equality Act 2010. A person is to be considered disabled if they have a physical or mental impairment which has a long term, substantial and adverse effect on their ability to carry out their normal, everyday activities. Obesity will not amount to a disability unless this test is met.
Interestingly, the CJEU also noted in this case that whether or not the employee’s obesity was self-inflicted is irrelevant. The important factor in determining whether the disability discrimination protection applies is the impact that the employee’s obesity has on their life and their ability to carry out ‘everyday’ activities.
What does this ruling mean for UK employers?
This decision of the CJEU brings obesity in the workplace sharply into the spotlight in the UK. The question is what does this ruling mean for employers? What should employers now be doing to minimise the risk of disability discrimination claims being brought by obese employees?
Employers need to be aware that if obese employees are able to demonstrate that they have satisfied the definition of disability (which is detailed above), then they acquire the right not to be treated less favourably than their colleagues because of their weight and additional obligations apply in respect of making reasonable adjustments for such employees. Although the preliminary Advocate General’s Opinion spoke in terms of an individual’s Body Mass Index (BMI), the CJEU moved away from this concept and did not include BMI considerations as part of its decision. Employers should therefore seek medical advice in order to determine whether an obese employee meets the definition of having a disability.
An employer’s duty to make reasonable adjustments for disabled employees will also be extended to such individuals, and therefore they should consider putting in place reasonable adjustments for obese employees to avoid potential discrimination claims, for example, providing employees with larger office furniture and/or adapting work vehicles. For some businesses, it may be appropriate to have a wellbeing policy in place and it will certainly be helpful to promote a healthy work-life balance. Managers can also extend support to employees who are actively attempting to lose weight – after all, promoting a healthier workforce can only benefit both employers and employees!
This is a complicated area of law, so if you are unsure or require legal advice then do contact our employment team by e-mailing on employment@stephens-scown.co.uk or by calling 01392 210700.