24 July 2014 #Employment
We know that obesity is one of the most critical health issues facing the developed world, not least in Western Europe. The European Court of Justice now looks set to confirm, based on a preliminary opinion of the Court this week in a Danish case, that obesity, at least severe or “morbid” obesity can be a disability.
In fact, leaving aside questions of European law, the Employment Appeal Tribunal in Walker v Sita (2013), came to the same view. In that case, Mr Walker suffered from "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").
The approach of the ECJ in the case this week was rather different and arguably less helpful. Mr Kaltoft, who weighed 25 stone, was a Danish child minder who was dismissed because he could not carry out some of his duties, including being able to tie a child’s shoelaces, due to his size.
The ECJ’s view was that whether obesity is a disability, albeit it is not defined in the Equal Treatment Framework Directive, depends on its severity. It was considered that only World Health Organisation class III obesity (that is “severe”, “extreme” or “morbid” obesity) was likely to create limitations sufficient to amount to a disability. Persons with a BMI in excess of 40 are obese class III. Mt Kaltoft had a BMI of 54.
That raises the question of whether a person with a BMI of 39 could be disabled. Hence the approach of the ECJ is arguably not that helpful ,compared to that of the EAT.
Of great interest however, is the fact that the ECJ relied on the UN Convention on the Rights of Persons with Disabilities, which is binding on the EU. The Court has said that it is part of the EU legal order. The Convention does seek to define disability. What will be interesting to see is whether employees will seek to push the boundaries of the definition of disability by reference to the Convention. It states that disability “is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”.
Determining whether an employee is disabled as a result of obesity will of course be difficult and will be a sensitive issue to discuss directly with the employee. However, employers should remain vigilant as an employee who is deemed disabled will trigger the provisions of the Equality Act which includes the duty on employers to make reasonable adjustments and to ensure the employee is not discriminated against. For severely obese employees this may include changing duties to ensure less mobility, providing car parking spaces and/ or providing larger chairs and/ or desk spaces.
More difficult perhaps will be dealing with “fatist” office banter. Such banter is generally considered inappropriate in any event but employers should be wary of how legal claims could result in future by failing to deal the issue effectively and sensitively.