Is obesity the new disability?
The recent opinion of the Advocate General in the case of Kaltoft v The Municipality of Billund has caused ripples throughout Europe.
Mr Kaltoft was a Danish childminder who worked for his local city council. He weighs over 160kg (25 stones) and is 1.72 meters (around 5 foot 8 inches). That means he has a body mass index (BMI) of 54 and is classed as morbidly obese.
He was made redundant and he brought a claim saying that the redundancy was a sham. He alleged that his employment was really terminated because of his obesity and that his weight was one of the reasons he lost his job. For example, he alleged that his employment was terminated after he was unable to bend down to tie up a child’s shoelaces, because of his size.
In the opinion of the Advocate General, while obesity does not of itself automatically amount to a disability, it might if the individual was morbidly obese (currently defined a having a BMI of 40 or over). While the European Court of Justice doesn’t always follow the Advocate General’s opinion, it usually does and its rulings affect European national courts.
So we’re left wondering – if you have a BMI of 40 or over, are you disabled for the purposes of the Equality Act 2010? And does that mean that employers have to make reasonable adjustments for you – bigger desks, less physical work, getting you help to (for example) tie children’s shoelaces or even having to provide healthy calorie controlled choices in the staff canteen?
Few would dispute that morbidly obese people do face prejudice, particularly in obtaining employment and surveys carried out into the attitudes of recruiters and HR professionals support that view, showing that they see fat people as having a negative impact on the workplace and productivity levels. Yet we all seem to be getting fatter –the government’s public health agency figures suggest that 64% of the population are overweight or obese. Obesity can also often be caused by an underlying physical or mental health condition and employers need to be careful to ensure they appoint and retain the best candidates – if they have negative perceptions of fat people, they may be missing out on the best candidates. However, obesity isn’t one of the 9 protected characteristics protected by our current Equality legislation, but disability is a protected characteristic.
Disability is defined in the Equality Act as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities. Long term usually means goes on for 12 months or longer, or recurs over a 12 month or longer period. Substantial just means causes you significant problems.
This issue was examined by the Employment Appeals Tribunal in the case of Walker v Sita Information Networking Computing Ltd. Mr Walker was obese and suffered from many (15+) different ailments which could not be attributed to a recognisable physical or mental cause, but were regarded as functional problems, accentuated by his being obese. He weighed 21.5 stones. The genuineness of his symptoms and the fact that they caused him significant difficulties in his day to day life was accepted, the question was whether, given the lack of a clear, identifiable ailment, he could be considered disabled or not.
The EAT held that although obesity does not render a person disabled of itself, it may make it more likely that someone is disabled. It also questioned what would happen to someone who was obese, but then lost the excess weight and therefore the impairment. This could mean that the impairment would not be considered long term, as by losing the weight the individual had, in effect, cured their disability. But the legal guidance is clear – if impairment exists, it does not matter how it was caused. For example, liver disease could still count as a disability even if it had been caused by alcoholism, though alcoholism itself does not count as a disability.
So the current position seems to be that if an individual has a BMI of 40 or more (morbidly obese) they might count as disabled for the purposes of employment law IF their obesity has a real impact on their ability to do their job. If it doesn’t, they won’t count as disabled. And presumably, if they do count as disabled then their employer will have the duty to make reasonable adjustments to help them do their job!
The ruling of the ECJ in the Kaltoft case should be out in the next 4-6 months, so watch this space. The good news for employers is that very few employees will meet the criteria of a BMI of 40 or over.