14 January 2015 #Employment
The European Court of Justice has today given judgment in the obesity and disability case involving a Danish childminder, Mr Kaltoft, that we first reported back in July of this year. The approach taken by the Advocate General, that the effects of obesity constitute a disability, although obesity is not in itself a disability, has been confirmed, as expected. It is to be imagined that the timing of the case, as we head into the Christmas feasting period, will attract some media attention, given the present topicality of both obesity and European law.
However, the judgment should not, in effect, represent any significant departure from what the accepted legal position is in the UK in any event. The Employment Appeal Tribunal in Walker V Sita (2013), considered Mr Walker’s "functional overlay" compounded by his obesity. He had various physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression), which caused him difficulty in his day-to-day life. He brought a disability discrimination claim against his employer, but an employment judge found that he was not "disabled". In doing so, the judge noted that an occupational health specialist had decided that a significant part of Mr Walker's symptoms was played by "a functional/behavioural component", and had not been able to identify a "physical or organic cause" for his conditions other than his obesity .
The EAT overruled that decision saying the tribunal had been wrong to focus on the fact that the medical evidence could not identify a physical or mental cause for Mr Walker's conditions. He had been substantially impaired by both physical and mental impairments for a long time. The proper question was whether Mr Walker had a physical or mental impairment. UK disability discrimination legislation does not require a judge to focus on the cause of such an impairment. The EAT ruled that obesity does not of itself make a claimant disabled. However, it might make it more likely that they are. On an evidential basis, a tribunal might conclude more readily that an obese claimant suffers from an impairment or a condition such as diabetes. Further, the obesity might affect the length of time for which the impairment is likely to last (with regard to whether the impairment has a "long-term effect").
In Mr Kaltoft’s case, the matter has been referred back to the Danish Courts to consider if Mr Kaltoft should be considered disabled under Danish law, in light of the ECJ’s ruling.
Interestingly, Jane Deville Almond, the chairwoman of the British Obesity Society, appears to agree that obesity should not, in itself, be classed as a disability.
She told the BBC: "I think the downside would be that if employers suddenly have to start ensuring that they've got wider seats, larger tables, more parking spaces for people who are obese, I think then we're just making the situation worse.