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When considering if a worker is disabled or not – for the purposes of being covered by the Equality Act 2010 – employers must consider the impact of any physical or mental impairment on the worker’s “ability to carry out normal day-to-day activities”.
If the answer is ‘yes’ to the following points then a worker is likely to be described as disabled for these purposes:
You can read more details about disability here.
In the 2013 -Walker v SITA Information Networking Computing Limited case, the Tribunal found that Mr Walker, who was clinically obese and suffered from a number of medical complications, was not disabled as defined in the Equality Act.
They felt his condition was a “species of self-harm on a par with alcohol or drug addiction”. The Employment Appeal Tribunal did not agree and said the cause of his medical conditions was irrelevant. Instead what was relevant was that Mr Walker was suffering from a number of physical and mental conditions, which caused him impairments extreme enough to be classed disabilities under the Equality Act.
As a result, from 2013, the complications caused by obesity could be defined as a disability if they are of sufficient duration (more than one year) and substantially impaired the employee’s day-to-day activities.
In July 2014, however, the advocate general of the European Court of Justice offered his ‘opinion’ on whether obesity is a disability.
This occurred because the European Court was asked for legal clarification of whether obesity is a disability following the case of Danish child-minder, Kaitoft, who was dismissed from his job with a Local Authority after 15 years. During this time he was obese and although he had tried to lose weight he had failed. He was dismissed on the grounds of performance as his employer alleged he was unable to fulfil many aspects of his role due to his size. Mr Kaitoft claimed he had been discriminated against on the basis that obesity is a disability.
The issues were raised before the European Court in June 2014 and, pending the court ruling, the advocate general has issued an ‘opinion’ on the case. His opinion doesn’t have to be followed by the Court, although they usually are (the Court of Justice of the EU will rule of this later in 2014 – you can see the full details of there December 2014 ruling here).
The Advocate General’s opinion is that:
In summary, the AG said that while obesity itself is not a category of disability (and so does not attract automatic discrimination protection), there will be circumstances where the impact of obesity, if sufficiently significant, will to lead to disability.
He highlighted morbid obesity as an example (those with a Body Mass Index of 40 or more) where the obesity has reached a point which “plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails”.
In the AG’s view, only obesity that is severe, extreme or morbid will create “limitations” that will amount to a disability in the legal sense (limitations in mobility, endurance and mood).
He emphasised that it is irrelevant whether the obesity is caused by “simple excessive energy intake in relation to energy expended” or by a psychological or metabolic problem or side-effect of medication. If a disability is self-inflicted this does not prevent it being a protected disability – the focus has to be on the effect not the cause.
The UK’s Equality Act 2010, which includes our disability laws, derives from the European Equal Treatment Framework Directive. Therefore any European judgement will affect the UK.
25% of the UK population is currently believed to be obese, with 4.5% of the population believed to be morbidly obese.
The ‘Opinion’ appears to only apply to those who are severely obese not those who are identified only as clinically obese. In December 2014 the EU Court ruled that Obesity can be a disability in certain circumstances, you can see the details here.
UK Courts will have to work out whether other conditions associated with obesity – breathlessness, joint pain, general mobility issues – are also sufficiently disabling.
Similarly, it may be unlawful to reject a job applicant simply because they are overweight.
Practically, this also affects employers, as it means they have obligations to make reasonable adjustments in the workplace to help accommodate employees, under the Equality act, where someone has a disability. More details about reasonable adjustments are in our Guide here.
The advocate general in his ‘opinion’ went onto say that whilst employers are not obliged to continue employing someone who is unable to carry out the essential functions of his/her job, employers are required to make reasonable adjustments unless the burden would be disproportionate (burden of costs etc).
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by Veronique Debord-Lezaro
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