David Ward: "Schools could now face discrimination claims if inappropriate comments are made in the staff room towards obese employees"

A lesson on obesity - is it a disability?

Obesity may soon become an issue for employers - Blacks Solicitors explain how to deal with it in an educational setting

Posted by Stephanie Broad | September 18, 2015 | Law, finance, HR

• #blacks-solicitors
• #obesity
• #legal-advice
• #disability
• #european-court-of-justice
• #independent-schools
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• #education

Obesity levels in the UK have risen dramatically over the last quarter of a century. Statistics suggest that 25% of the current UK population is obese. Changes afoot in the law of employment suggest that obesity may become an issue for employers, and the case at the heart of it all brings the matter straight into the classroom.

A landmark case on obesity discrimination

The case of Kaltoft v Municipality of Billund caused Danish Courts to ask the European Court of Justice (ECJ) whether:

1. EU law prohibits discrimination on the grounds of obesity, as it does in cases of religion, sex, age etc
2. Obesity is a form of disability in itself under the Equal Treatment in Employment Directive.

The case involved a Danish childminder (Mr Kaltoft) who claimed that his employer had dismissed him because of his obesity. Mr Kaltoft had worked for the Municipality of Billund for 15 years, but was later dismissed on the grounds of redundancy. During his redundancy process, Mr Kaltoft’s obesity was mentioned, although the parties disagreed as to why or how this was the case. When Mr Kaltoft was dismissed, there was no explanation provided as to why he had been selected for redundancy, in favour of any of his colleagues. Neither was his disability mentioned.

The ECJ’s decision

Initially, the Advocate General (AG) provided a non-binding decision that appeared to follow the recent decision of the UK Employment Appeal Tribunal (EAT) in the case of Walker v Sita Information Networking Computing Ltd. Walker held that an obese person (weighing 21.5 stone) was likely to suffer from side effects (asthma, knee problems, diabetes, high blood pressure, chronic fatigue syndrome and depression) that could amount to a disability. Employment practitioners thought it likely that the ECJ would follow this decision and the UK’s courts and tribunals would then become bound to follow it. The AG decided that whilst obesity was not a disability, severe or morbid obesity may amount to a disability for discrimination law purposes. 

A disability, under the Equality Act 2010, requires an individual to show that he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Both decisions (EAT and AG) suggested that the obesity in question would need to be severe enough to significantly affect the individual’s professional life. The AG suggested that a BMI of over 40 would fall into this category.

Supporting the AG’s opinion, the ECJ subsequently held that while obesity is not a protected characteristic, the effects of a particular individual’s obesity may, in certain circumstances mean that they are regarded as disabled employees under EU law and therefore be entitled to protection against discrimination.

Since this ruling, the Northern Ireland Industrial Tribunal (NIIT) in the case of Bickerstaff v Butcher (Mr Butcher being an individual respondent in person) has held that an employee of a laboratory with a BMI of 48.5 was “harassed for a reason which related to his disability, namely his morbid obesity condition”. The NIIT heard that Mr Butcher had said to Mr Bickerstaff that he was “so fat he could hardly walk”.

If a teacher, teaching assistant or a member of support staff is obese and their weight hinders full and effective participation at work, then senior leadership should consider ways to help that employee to participate fully. Also, Bickerstaff suggests that schools could now face discrimination claims if inappropriate comments are made in the staff room towards obese employees.

There is clearly a difference between the ECJ’s decision (that obesity may amount to a disability) and the NIIT’s decision (that harassment by reason of obesity was discriminatory on the grounds of disability). The precise effects of these rulings is not yet clear for England and Wales, although we doubt it will be long before a case is presented in an English employment tribunal.

David Ward is an Assistant Solicitor in the Employment Team at Blacks.   

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