The Advocate General in Europe yesterday delivered an opinion on the issue of whether an obese employee is protected from discrimination..
In the UK, the Equality Act 2010 prevents unlawful treatment of employees and users of goods and services on the grounds of several protected characteristics, these being: sex, race, religion and belief, disability, age, pregnancy, sexual orientation, gender reassignment and marriage. The Equality Act does not specifically provide that obesity is a protected characteristic.
In the case of Kaltoft v The Municipality of Bilund, it was claimed that Mr Kaltoft had been unfairly dismissed from his employment as a childminder because of his obesity. He was classified as having ‘severe, extreme or morbid obesity’ under World Health Organisation classifications. The Advocate General was asked to deliver their opinion on whether obesity fell within the general prohibition in EU Law covering discrimination.
It was found, perhaps unsurprisingly that obesity itself does not amount to a protected characteristic.
The Advocate General has however considered, in the main part of the opinion, whether obesity can amount to a disability. The Equality Act in the UK is derived from EU law. The EU definition of disability looks at whether a physical or mental condition makes the carrying out of that job or participation in professional life objectively more difficult and demanding.
The Advocate General in considering this determined that in “cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, 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, then it can be considered to be a disability.”
This is not to say that every person who is classified as obese will be protected from discrimination in the workplace. It is suggested that if that employee has a BMI of 40 or more and is therefore classified as ‘morbidly obese’ then they may be considered to have a disability.
This is not a hard fast rule, rather every individual case will turn on it’s own unique facts and circumstances. In considering this an Employment Tribunal must consider the actual impact of the impairment of obesity on the individual before determining whether it is sufficient, for our purposes in the UK to cause a substantial, adverse, long term effect on that person’s ability to undertake normal day to day activities.
It is expected that the European Court of Justice will follow the opinion of the Advocate General when they make their judgment, which is expected in the next 6 months.
What impact does this have for employees and businesses in the UK. For an employee, can it really be said that if your BMI is 39 then you cannot have a disability, but if it is 40 then you can? It is going to be essential to be clear as to exactly how obesity affects the individual, as I have mentioned, each case turns on it’s own individual circumstances. For an employer, the impact of this may be that they are required to make reasonable adjustments for an obese employee in the workplace which could include bigger chairs or closer parking facilities.
If you want any further advice or assistance on this issue, please do call our employment team.