Is Obesity Now A Disability?
A recent opinion by the Advocate General at the European Court of Justice has stated that “severe obesity may be a disability” in the case of a dismissed Danish child-minder who weighed 25 stone. As this opinion is likely to be upheld by the ECJ when it issues its final judgment, this potentially means that employers will need to be careful not to discriminate against the obese.
What is discrimination?
It is currently against the law to discriminate against people on the basis of certain protected characteristics, including gender reassignment, sex, sexual orientation, race, age, pregnancy, religion, marriage and disability. Discrimination includes treating someone less favourably; having a provision, criteria or practice which is more difficult for some groupings of people with protected characteristics to comply with; and, in the case of disabilities, failing to make reasonable adjustments.
Is obesity a disability?
The definition of a disability in England and Wales as per the Equality Act 2010 is a ‘physical or mental impairment with a substantial, adverse, long-term effect upon a person’s ability to carry out normal day to day activities’. The opinion says that whilst obesity in itself is not a protected characteristic, it could be a disability if the person is categorised as Class III obese by the World Health Organisation. This class of obesity (“severe, extreme or morbid obesity”) requires a person to have a BMI of 40 or above.
The Advocate General considered that severe obesity could constitute a disability ”where the condition of obesity has reached a degree that it… plainly hinders full participation in professional life on an equal footing with other employees due to the physical or psychological limitations that it entails”. In his opinion, he refers to “severe” obesity, and to the severely obese being those with a BMI of 40 or above. So does this mean that if you have a BMI of 40 or above you are automatically disabled for the purposes of employment law? Not necessarily. According to the Advocate General, the BMI of 40 or above would have to “hinder” the “participation in professional life”- which may not always be the case.
The wording used in England and Wales to assess the existence of a disability is different – we consider whether the impairment has an adverse effect upon the ability to carry out normal day to day activities, not the participation in professional life. This may mean that it will actually be easier to show that obesity is a disability in England as it is easier to show an adverse effect upon day to day activities such as walking upstairs than professional life, which may after all involve sitting at a desk.
Importantly, the Advocate General made the distinction between “mere” obesity, and “severe”, presumably because the more serious the obesity, the more hindrance it will cause. This distinction could be key for employers, as potentially those with a BMI of less than 40 would not be able to say they are disabled, even if their weight is having an adverse effect on their ability to carry out day to day activities.
The case of Walker v Sita Information Networking Computing Ltd was appealed at the employment appeals tribunal (EAT) in February 2013. The Judge commented in this case that obesity does not “render a person disabled in itself”, although it may make it more likely that a person is disabled on other medical grounds. The Judge stated that it was important to deal with the effects of the disability rather than the causes, so arguably an obese woman who cannot walk more than 50 yards without having to rest could be classed as disabled, due to her reduced mobility, regardless of the fact that it is caused by obesity. The difference now is that the woman would potentially no longer need to prove her reduced mobility is a disability - the fact that she is severely obese (if she has a BMI of 40 or above), and this has an adverse effect on her day to day activities, would probably be enough to satisfy the law.
What does this mean for UK employers?
It is worth noting that the ECJ in preliminary rulings does not decide disputes itself; it just tells EU member states how EU law is to be interpreted. Should the ECJ uphold the opinion, UK employers will be bound by the inclusion of severe obesity as a disability under the EU directive. This means that obesity will be most likely a disability under UK law, as the UK courts will have to follow the ECJ decision when interpreting the Equality Act 2010. Therefore employers will have to make “reasonable adjustments” in the workplace, and ensure they do not discriminate against obese employees.
What reasonable adjustments can be made for obese employees?
Reasonable adjustments may include larger chairs, adaptations to uniforms, and potentially altering access arrangements such as doorways, giving obese employees designated larger parking spaces and installing lifts. As ever, the word “reasonable” involves a judgement call by employers assessing the needs of their employees in a particular situation.
Currently employers are not generally permitted to ask questions relating to a person’s disability or health in the early recruitment process. Such questions will have to wait until an applicant has been offered the job, except in certain circumstances. The only circumstances in which an employer can ask questions about health or disability in the recruitment process are; to determine if adjustments need to be made for an applicant to carry out an assessment which forms part of the recruitment stage, to monitor workplace diversity, if asking the question is necessary to find out if an applicant can carry out a function that is intrinsic to the job, or if they support “positive action” in recruiting disabled people (such as a guaranteed interview). The answers to these questions must not form part of the grounds for rejecting an applicant for the job. If obesity is to be treated as a disability then employers will obviously be able to see whether an employee is severely obese at the interview stage, just as they can tell if the employee is in a wheelchair or is deaf or blind. Most employers include a blanket question such as “please let us know if you have any disabilities requiring a reasonable adjustment for the interview” and it would be appropriate to expect someone who did need an adjustment to let the employer know. Employers will need to ensure that they do not reject applicants on the mere basis that they are obese.
Obesity has been classed as a disability in US law since 2010. Employers must be aware that obesity is on the rise in the UK, with predictions stating that half of the population will be classed as obese by 2050. Currently only 1 to 2% of the population is classified as class 3 obese by the WHO, but employers are likely to be wary of employing those in class 1 or 2 who may become more obese during their employment, or whose obesity may cause more of an adverse effect as time progresses.
Knowledge of obesity
Another important consideration is whether the employer knows that an employee is obese or that their obesity amounts to a disability. It may be evident from looking at an employee’s size, but how is an employer meant to know the difference between someone with a BMI of 38, and someone with a BMI of 40 or above, which makes them potentially disabled?
Many people do not know their own BMI, so how is an employer expected to know the BMI of their entire workforce? If the employer doesn’t know about the disability, arguably they cannot be liable for discrimination, unless it can be proved that they “should” have known. Having regular weigh-ins in the office could be a way for employers to check up on whether their employees are obese, but this in itself could be another way of treating employees less favourably. Many employees who are overweight would probably be aghast to be described as “disabled” due to a weight problem. As ever though, employees may change their feelings about this if they are dismissed. Unlike unfair dismissal claims, there is no requirement to have two years’ service to bring a claim for disability discrimination, and the potential compensation is not capped(the unfair dismissal compensatory award is capped at the lower of the employee’s annual salary or the sum of £76,574.)
Employers must therefore be sure they are treating all employees fairly…size doesn’t matter.