Is Obesity a Disability?

Is Obesity a Disability?

The Court of Justice of the European Union is currently considering the case of Kaltoft v The Municipality of Billund and more importantly the question of whether obesity is a disability.

If the Court decides that it could constitute a disability then this is likely to mean that employers will have a duty to make reasonable adjustments to assist obese employees. These could include providing bigger desks and chairs car parking spaces closer to the front door and duties involving physical mobility.

The Advocate General has given his opinion on this point. The first part of the opinion confirmed as was already fairly clear that obesity was not a protected characteristic in itself as opposed to race sex and sexual orientation etc under the Equal Treatment Framework Directive.

More importantly the opinion went on to consider whether obesity fell within the definition of a “disability” under the Equality Act 2010. The Advocate General pointed out the EU definition of “disability” covers the situation where a physical or mental condition makes "carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing."

He went on to say that in "cases where the condition of obesity has reached a degree that it in interaction with attitudinal and environmental barriers as mentioned in the UN Convention plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails then it can be considered to be a disability." Therefore it appears that obesity could be a disability in certain situations but the opinion does not say that obesity will be a disability.

In practice this is likely to mean that if an individual has a Body Mass Index of 40 or more and is therefore considered to be ‘morbidly obese’ that person might be disabled if the obesity has a real impact on their ability to participate in work. If their obesity does not have this effect then they will not be disabled.

The Court of Justice of the European Union has not yet given its decision in this case and it usually although not always follows the opinion of the Advocate General.

In the UK the Employment Appeal Tribunal (EAT) has previously ruled that obesity in itself is not a disability under the Equality Act definition. But it did consider that an obese person may be more likely to be considered as having a disability. For example diabetes depression and joint-pain are all associated with and potentially compounded by obesity. These may be impairments that have a substantial adverse effect on an individual’s everyday life.

It will be interesting to see how the Court rules as this decision will affect employment across the whole of the EU and could place employers in a difficult position as they would have a duty to make reasonable adjustments to assist obese employees. Considering that more than 60% of the UK population is considered to be obese this could be very costly.

If you have been dismissed or discriminated against by your employer for any reason including race sex or disability please contact the dedicated employment team at Michael Lewin Solicitors and we will be happy to discuss your potential claims with you.

Anthony Fox

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