Following a hearing on 17-Jul-2014, the Advocate General of the European Court of Justice stated that ‘severe obesity is a disability’. This was ruled in a Dutch case involving a severely obese child-minder who was dismissed due to, what the client believes, was his weight.
A person is said to be severely obese by medical professionals if they have a BMI of 40 or above. This is due to the complications that normally accompany this BMI, such as diabetes, sleep apnoea, etc.
UK law does not itself cover discrimination by reason of obesity, but it does cover disability. Therefore, if a person is suffering discrimination, whether it is in employment or elsewhere, they may be able to claim using the Equality Act 2010. The ruling by the Advocate General is not binding and therefore this is not yet EU Law. However, in December 2014, a UK tribunal became the first case to use this ruling for a discrimination claim.
The Northern Ireland Industrial Tribunal followed the ruling of the above case to grant an award to Bickerstaff. This involved discrimination in the context of harassment at a workplace. It is important to note that this claim was against a colleague and not the employer due to the reasonable steps the employer had taken to stop the harassment. The harassment in question involved daily taunts and comments about the clients’ weight – he has a BMI of 48.5.
After the ruling was referred to, the severe obesity of the client was seen as a disability along with his diagnosis of sleep apnoea and gout. These conditions hindered the clients’ ability to carry out day to day activities and hindered his full and effective participation at work – therefore amounting to a disability under the Equality Act 2010.
The court made clear that the fact that such a disability could be self-inflicted and reversed is of no relevance in such a claim. The tribunal pays attention to the impact of the condition on the client, not the origin of the condition.
If this ruling is made legally binding by the EU, employers will be expected to make reasonable adjustments for obese members of staff in order to assist them to fully participate at work. These adjustments could include, larger parking bays closer to the doors, specialist desks and chairs and even the requirement to provide healthy food in any canteens and vending machines.
There are already discussions around this sensitive subject which all refer to the importance of not making assumptions about employees’ needs and requirements arising from obesity. This itself could constitute a claim for perceived disability discrimination.
America already have past cases which resulted in compensation for discrimination arising from obesity – up to $55,000 (£32,800) claimed for dismissal due to obesity.
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