A decision from the European Court of Justice is awaited for a case heard earlier this summer, the outcome of which could mean special treatment has to be given to employees whose weight is causing them problems in the workplace.
It’s not surprising that weight related issues have now found their way to the EJC given that since 1993 obesity levels have doubled and statistics confirm that 25% of the current UK population is obese.
However, the weight issues considered by the European Court are at the top end of the scale and relate to the weight of the ‘morbidly obese’ – those who have a Body Mass Index (BMI) of 40 or over.
The case (Kaltoft v Municipality of Billund) concerns a Danish childminder who has claimed that his employer terminated his contract of employment because of his weight, and that this amounted to unlawful discrimination. Mr Kaltoft was 5 feet 7 inches and weighed over 25 stone, giving him a BMI of 54, which is extreme or morbid obesity under the World Health Organisation classification.
The Danish court referred the case to the European Court of Justice (ECJ) posing two questions:
In July 2014 the Advocate General of the ECJ responded with his opinion, which will be an influential factor in the final decision when it is made by the ECJ later this year. He has rejected the suggestion that obesity is a protected characteristic, as nothing in the EU Treaty or the Charter of Fundamental Rights refers specifically to obesity as a prohibited ground of discrimination.
However, he has said that severe obesity could amount to a disability for the purposes of discrimination law. To meet that definition of disability, the effect would have to be so severe that it prevented someone from taking a full part in their professional life. He went on to suggest it is possible that obesity could amount to a disability for anyone in the morbidly obese category.
This contention that obesity of a certain severity may alone constitute a disability goes beyond the current position under UK law. The Equality Act 2010 requires that someone must show that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities to meet the definition of disability. Therefore, obesity on its own would not amount to a disability unless this test is also satisfied.
This was reflected in a UK Employment Appeal tribunal decision last year in the case of Walker v Sita Information Networking Computing Ltd. The outcome was that obesity was not in itself a disability, but that any resulting conditions or side-effects could amount to a disability.
The Advocate General also said that he considered the origin of the disability was irrelevant and employers could not claim that the condition was self-inflicted and therefore excluded because if that was permitted, it would mean that any disability suffered through an individual’s risk taking or negligence would also be excluded, such as road traffic accidents.
While the Advocate General’s opinion is not binding, it is usually followed and therefore very likely to lead to a similar judgement from the ECJ which will have to be followed in UK courts and tribunals.
For employers, this outcome would mean that they would be required to show that they are not treating overweight employees less favourably because of their weight and they would have a duty to make reasonable adjustments to the workplace to help any obese employee. This could range from avoiding duties that demand significant mobility through to bigger desks and making sure that other employees don’t make comments about their weight.
With the various benefits of a healthy workforce, employers should consider endorsing healthy lifestyles and healthy eating in the workplace to encourage and support employees towards positive lifestyle choices. Government initiatives, such as the cycle to work scheme, are also very well received by employees or considering sponsoring a sports team or organising some company events.
If you would like any further advice on any of the issues raised in this summary, then please contact Julie Taylor on 01635 508181 or [email protected]der.co.uk