Posted on Jul 23, 2014 in Employment
Gabrielle MacDonald from Thorntons Employment Law team considers the latest case on obesity and how it may impact on employers and employees.
Obesity is a growing problem in modern society, particularly in the UK, where about a quarter of the adult population is deemed to be clinically obese. According to Public Health England, obese employees take significantly more short and long term sickness absence than workers of a healthy weight, which can significantly impact on business costs due to time off work through associated illnesses. In addition, obese people frequently suffer other issues in the workplace, including prejudice and discrimination.
Employees who have a recognised disability are protected from being discriminated against by their employers by the Equality Act 2010. Certain conditions are deemed automatically to be a disability, but obesity is currently not one of them. The issue of whether obesity is a disability has been left to the courts to determine.
The latest case on the issue was brought by a Danish childminder last month, who asked the European Court of Justice to consider whether obesity is a disability. Karsten Karltoft was dismissed by his local authority because it deemed that he could not perform his duties due to his size (he weighed over 25 stone), citing the fact that he required help from a colleague to tie up the children's shoelaces.
The Advocate General, who advises the European Court, issued his opinion on the matter on 17 July, concluding that obesity does not automatically qualify as a disability. However, he stated that obesity may amount to a disability in circumstances where it is 'severe' (with a Body Mass Index of 40 or more), and it can be considered a disability where the condition has reached such a degree that "it plainly hinders full participation in professional life". So an employee might be deemed disabled if they have a BMI of 40 or more and the obesity has a real impact on their ability to participate in work.
What does this mean for employers? If the European Court of Justice follows the opinion of the Advocate General (as it usually does), it will strengthen the position of employees who suffer from severe obesity, as they are more likely to be protected by anti discrimination legislation. This will also extend employer's responsibilities, as they could be obliged to make reasonable adjustments to accommodate employees who are severely obese. Reasonable adjustments may include providing larger desks and chairs, providing a car parking space close to the workplace entrance, and/or changing the employee's duties to reduce the amount of walking or travelling they are required to do. In addition, if a severely obese employee is off sick from work for a reason connected to their obesity, the employer may need to review their absence management procedures to take this into account.
It is important to note that each case must be considered on its own merits, and that having a BMI of over 40 does not automatically mean a person is disabled. It does mean for employers, however, that they must exercise a cautious approach, and if in doubt, seek legal advice.
We expect the judgement of the European Court to be issued in a few months time.
Gabrielle MacDonald is a Senior Solicitor in Thorntons Employment Law team.