The controversial issue of whether employees need special treatment
The latest and most important of a string of cases regarding the controversial issue of whether or not obesity amounts to a disability is the decision of the Court of Justice of the European Union in the Danish case Kaltoft v Municipality of Billund.
Employers should be aware to begin with that the case does not say that being fat is a disability - organisations are going to have to take matters on a case by case basis and assess each employee individually.
Facts
Kaltoft had worked for a children’s nursery for 15 years and was dismissed on the grounds of redundancy. He reportedly weighed 25 stone and satisfied the World Health Organisation’s definition of obesity. He argued that his selection for redundancy was due to his weight.
The Danish court asked the CJEU to specify whether:
- EU law prohibits discrimination on the grounds of obesity
- obesity could constitute a disability.
The EU employment equality directive sets a general framework for equal treatment in employment. It covers matters such as sex, religion, and disability, but doesn’t specifically cover obesity.
Disability discrimination
The European court stated that while non-discrimination was a fundamental right, no EU treaty prohibited discrimination on the grounds of obesity as such. However, since the definition of ‘disability’ includes a long-term physical, mental or psychological impairment which may hinder an individual’s ‘full and effective participation in professional life’ on an equal basis with others, obesity may amount to a disability if it limits a person’s participation at work. Furthermore, if the only reason the employee can participate fully at work is because of adaptations made by the employer, the employee could still be regarded as disabled. The case was referred back to the Danish court to determine if Kaltoft’s obesity fell within this definition of disability.
Case law
The European Advocate General had previously stated in this case that severe or morbid obesity might fall within the definition of disability under EU equality law if it stops an employee’s full participation in their professional life on an equal basis with others. The decision also sits alongside the Employment Appeal Tribunal judgment in another case, Walker v Sita Information Networking Computing.
The decision in the Kaltof case, which is binding on all EU member states, is seen as controversial in some quarters because some individuals regard obesity as a life choice rather than an illness. However the Advocate General has been keen to point out that it does not matter whether the obesity is caused by an underlying medical condition or simply the over consumption of food. The crucial issue is whether or not the employee is in fact suffering from a long term impairment.
Checklist
So where does this leave employers? The first thing to remember is that an obese person is not necessarily disabled. Although the latest decision indicates that the cause of the obesity is irrelevant, if there is an underlying medical condition contributing to the employee’s weight, it will be easier for the employee concerned to show that they are disabled. If their size causes workers to suffer from diabetes, mobility problems, joint pains and so on, then they are likely to be regarded as disabled and
- will be protected in law
- cannot be subjected to a detriment because of their size.
If an employee’s severe weight is a cause of problems at work then employers may have to look at making reasonable adjustments in the same way that they would for any other disabled employee. On a practical level this may include adjustments such as providing a parking space nearer to the office, adjusting work stations, chairs and desks and so on or re-assigning tasks. When assessing whether or not an employee is disabled, an employer should disregard any adjustments they have already made to accommodate the disability.
Sarah Rushton is an employment partner at Moon Beever
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