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Case law: Obese employees not necessarily disabled

Obesity is not itself a disability but an obese employee can be disabled if the effect of their condition is a physical or mental impairment, and no other underlying cause can be found, the European Court of Justice has ruled.

Legal Alert

This update was published in Legal Alert - February 2015

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee in Denmark was made redundant after 15 years' service. He weighed 25 stone and fell within the World Health Organisation's definition of obesity. He claimed that he was selected for redundancy because he was obese and this amounted to disability discrimination. His employer denied he was disabled.

The European Court of Justice (ECJ) ruled that an obese person is not automatically disabled, but may be if the effect of their condition is that they have a physical or mental impairment which interacts with external factors, on a long-term basis, to stop them from participating fully and effectively in professional life on a par with other workers. It is irrelevant that they may have contributed to their own condition. The cause of their obesity may be medical or simply because they eat too much, provided the obesity results in a long-term impairment.

However, it will be easier for an employee to prove they are disabled if an underlying medical condition is contributing to it or, conversely, if their size causes them to suffer from other conditions such as joint pain or diabetes.

The ECJ went on to confirm that an obese employee who can participate fully at work may still be disabled if the only reason they can participate fully at work is because of adaptations made by their employer.

The Court said it was a matter for national courts, such as UK employment tribunals, to decide when obesity would amount to a disability. Under UK law someone is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In a recent case in the UK Employment Appeal Tribunal (EAT) an obese employee suffered from numerous conditions including diabetes, hearing loss, anxiety and depression, carpal tunnel syndrome, and eye problems. The occupational therapist said these were compounded by his obesity and amounted to a chronic permanent condition affecting his daily living. However, there was no apparent cause.

The employee claimed disability discrimination but the employment judge ruled he was not disabled on the basis that his occupational health specialist could not find an underlying 'physical or organic cause' for his condition, other than obesity.

The EAT ruled this was the wrong approach. The test was whether the employee had a physical or mental impairment which had a substantial and long-term adverse effect upon his ability to carry out normal day to day activities. It referred to para A8 in the government guidance on matters to be taken into account when considering disability, which says:

"It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment, although an addiction to alcohol itself is expressly excluded from the scope of the definition of disability in the Act. What it is important to consider is the effect of an impairment not its cause – provided that it is not an excluded condition."

The judge should therefore have looked at the effect of the employee's condition, rather than search for its specific cause. In this case, the employee clearly suffered long-term physical or mental impairment that satisfied the test.

The EAT did, however, say that its cause may provide evidence that an impairment is not substantial or long-term. For example, if an obese employee's impairment would disappear if he lost weight, this may mean his impairment is not long-term and he would not be disabled.

Operative date

  • Now

Recommendations

  • Employers considering whether an employee is disabled should:
  1. Consider the effect of his condition, not the cause, when deciding whether he or she has a physical or mental impairment.
  2. Consider whether any identifiable cause of an impairment, such as obesity, could be remedied within, say, 12 months, so the impairment will not have a long-term effect.
  3. Download the free Guidance from the gov.uk website.
Case refs: Karsten Kaltoft v Municipality of Billund, case no. C-354/13
Walker v Sita Information Networking Computing Ltd [2013] UKEAT 0097_12_0802

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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