Obesity and Disability Discrimination – Putting a heavy burden on Employers

All employers have a legal obligation to accommodate their employees’ disabilities in the workplace. Disability discrimination, unlike discrimination related to characteristics such as gender or race, places a positive duty on employers to make ‘reasonable adjustments’ for an employee’s disability as well ensuring they do not suffer any detrimental treatment. The European Court of Justice (ECJ) is currently considering whether obesity can be a disability for the purpose of discrimination law in the case of Kaltoft v Municipality of Billund.

The opinion of the Advocate General in the ECJ proceedings, which the court does not have to adopt, states that obesity should be a disability in ‘severe’ cases. The opinion defined a severe case as where an individual has a Body Mass Index (BMI) of 40 or higher, which is the point where a person’s weight would ‘hinder that individual’s participation in professional life to such an extent as to amount to a disability’. In Britain, currently about a quarter of all adults are classed as obese, with 4.5% of adults falling within the ‘morbidly obese’ category that would count as a disability. This amounts to several million employees that could claim disability discrimination protection on the grounds of their weight.

All good employers will recognise the importance of a healthy workforce. Many City employers will offer incentives and benefits such as gym membership and private health insurance. However, all employers could soon find themselves under a legal obligation to make reasonable adjustments for morbidly obese employees. These adjustments could be very small, such as bigger chairs and work areas, and perhaps even designated parking spaces closer to the office. These small changes are similar to those an employer would make to an employee’s working environment if they suffered from back problems, for example. However, obesity is self-inflicted in most cases, and these adjustments may be viewed by colleagues as preferential treatment and could cause resentment within a workforce. How would you feel if a colleague was given a bigger office merely because they are overweight and you are not? Obesity is a very sensitive issue, but to treat overweight people as disabled would be an injustice to both those who are fit and healthy and those who have a genuine disability which they cannot do anything about.

Geoffrey Bignell, Chairman of Just Employment Solicitors

Geoffrey Bignell, Solicitor & Chairman, Just Employment Ltd.

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