Anna Bunting asks: Is ‘Fatism’ on the horizon?

Can obesity amount to a disability?

Do overweight workers have the right to bring a claim of discrimination if they are treated less favourably, victimised or harassed on the grounds of their obesity?

Are employers under a duty to make adjustments to working conditions because of someone’s size?

The Advocate General recently gave an opinion on this subject in the European case of Kaltoft v Municipality of Billund.

Mr Kaltoft worked as a childminder until he was dismissed in 2010 after 15 year’s service. He was severely obese with a BMI of 54. He claimed he had been dismissed because of his obesity and brought discrimination proceedings in a Danish District Court. The Court referred the question to the European Court of Justice as to whether there is a general prohibition on discrimination on the grounds of obesity or alternatively whether obesity could be classified as a disability.

The Advocate General has given a preliminary opinion that there was no free-standing prohibition of discrimination on the grounds of disability but that severe obesity could amount to a disability in certain circumstances.

Whether obesity satisfies the definition of disability will depend upon the severity of the condition. Although obesity of itself is not a disability, severe obesity could result in limitations, such as problems with mobility, endurance and mood. In addition, it might make it more likely that a worker has impairments such as diabetes which could be serious. If these impairments are long-term and have a significant adverse effect on that individual’s ability to undertake day to day activities or participate in professional life they could be considered to be disabled for the purposes of the relevant legislation.

The Advocate General commented that ‘most probably’ only those who fell within the World Health Organisation’s class III obesity (with a BMI of over 40) would have problems that would amount to a disability.

So, if you do have any severely overweight workers, whilst they cannot bring a claim of discrimination on this ground alone, you do need to be aware that if they suffer any other connected complications as a result they could be considered as disabled due to these impairments. Please therefore be aware of any such problems and take care not to discriminate (whether intentionally or inadvertently) and also ensure that your managers are aware of the possible duty to make adjustments to working conditions in appropriate cases.

If you require any further advice on this or any other employment related topic please contact me or one of colleagues in the Employment team or call 0161 832 3304.

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