The answer is, yes it could be. According to the Advocate General (AG) of the European Court severely obese employees may have a disability for the purposes of employment law. Obese employees will not need to show they have other impairments to be regarded as disabled under the UK’s Equality Act 2010.
The AG’s comments have come from a case concerning a man employed as a child-minder by a local authority. During his employment his body mass index (BMI) had always been over 40. This level of BMI is considered as being severely or morbidly obese according to the World Health Organisation.
The employer carried out a reorganisation of its staff and the employee, Mr Kaltoft, was eventually dismissed. Mr Kaltoft made a complaint that he had been discriminated against because of his obesity.
The AG had to decide whether obesity alone could itself amount to a disability. Furthermore, the AG was asked to determine whether discriminating against someone because obesity could amount to disability discrimination.
According to the opinion of the AG, whilst there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right, morbid obesity may come within the meaning of ‘disability’ if it is of such a degree as to hinder participation in professional life. The AG also commented that the reasons for an employee’s obesity are irrelevant to the question of whether that person is disabled or not, as this is an objective assessment and does not depend on whether the impairment could be said to be “self-inflicted”.
Mr Kaltoft’s case is yet to be finalised however if the Courts determine that obesity can be considered to be a disability then it is likely to cause real difficulties for employers. The initial assessment of a person’s obesity and whether or not it meets the ‘test’ to become a disability will be very difficult for employers.
If the individual concerned is considered to have a disability then the employer will have to consider making reasonable adjustments to their working arrangements. These adjustments could extend to:
- the provision of special desks and chairs;
- parking spaces close to work; and
- maybe even offering meals at work catering for certain dietary requirements.
The eventual decision in this case may lead to a significant change of the face of discrimination laws.
If you have any questions about this or any other aspect of employment law, please do not hesitate to contact us on 0114 255 0825.