Does the fact that a person is obese mean they are, or could be 'disabled' for the purposes of the Equality Act 2010? If their obesity impacts on their ability to carry out normal day-to-day activities, should they be protected from discrimination because they are overweight?

Today [12 June 2014], the Court of Justice of the European Union (CJEU) will begin hearing the Danish reference of Kaltoft considering whether discrimination on the grounds of obesity is contrary to EU law. In particular, can obesity be deemed to be a handicap covered by the relevant Council Directive (which the EA 2010 implements in the UK).

Widening the scope of protection could increase the burden on employers in managing the varying needs of the workforce. 67% of men and 57% of women in the UK are classed as either overweight or obese. Should the CJEU hold that obesity itself can amount to a disability, there would be a significant rise in the number of employees potentially classed as disabled and for whom an employer may potentially need to make reasonable adjustments in relation to their working conditions.

The current UK legal position

Under the Equality Act 2010, "A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".

The conventional view under UK law is that obesity does not, of itself, render someone disabled. Last year, the Employment Appeal Tribunal (EAT) considered the issue in the case of Walker v Sita Information Networking Computing Ltd.

Mr Walker suffered from 'functional overlay' compounded by his obesity. He had numerous physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression), which caused him difficulty in his day-to-day life. The EAT held that although obesity alone did not, of itself, render a person disabled, it might make it more likely that someone is disabled. In particular, it may make a tribunal more readily conclude that the individual does suffer from an impairment.

When considering the question of whether an individual is disabled, it is the impairment itself that should be considered rather than its cause. As the EAT pointed out, this is so even if the cause of the impairment is a condition which is excluded from the definition of disability. An example of this is liver disease caused by alcohol dependency; alcoholism is not a disability under discrimination law, but the liver disease caused by alcoholism would qualify as an impairment and so can give rise to a finding of disability.

In the case of Mr Walker, it was clear that he did suffer impairments and so it did not matter that a medical cause for these other than his obesity could not be found. The key, as ever, is the consequence, not the cause of the condition.

The 'long-term' debate

The Equality and Human Rights Commission's "Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability" suggests that account should be taken of how far a person can reasonably be expected to modify their behaviour to prevent or reduce the effects of an impairment on their normal day-to-day activities.

In the Walker case, the EAT commented that obesity might affect the length of time for which the impairment is likely to last (with regard to whether the impairment has a 'long-term effect'). Where an obese individual is determined to lose weight, and a tribunal could reasonably conclude that they will reduce their weight to normal levels within a year, this might mean that impairments connected with the obesity might not be considered 'long-term' for discrimination purposes.

It may be possible for an obese individual to lose some weight within 12 months by modifying their behaviour. Whether it would be reasonable to expect them to do so to a level where the impairments would be alleviated, will be an interesting and difficult evidential question.

The case before the CJEU

The case before the CJEU concerns a local authority employed child minder. Mr Kaltoft was dismissed as he was deemed unable to perform his duties due to his size. He weighed more than 25st at the time he was dismissed. In support of the decision to dismiss, the local authority pointed to the fact that he was unable to bend down to tie children's shoelaces.

The CJEU is being asked two questions:

  1. Is there an EU prohibition of discrimination on the grounds of obesity? and
  2. Can obesity be deemed a handicap under the Directive covering disability discrimination?

It will be interesting to see whether the CJEU takes a restrictive approach, or takes note of the recent decision of the American Medical Association to categorise obesity as a 'disease' rather than a condition, which may make it more likely that the US courts consider obese workers to be covered by the Americans with Disabilities Act.

What might this mean for employers?

If obesity itself can give rise to discrimination claims, rather than impairments, which are a consequence of being obese, what difference will this make?

The impact could be significant with 67% of men and 57% of women in the UK classed as either overweight or obese, according to the Global Burden of Disease study, published in the Lancet medical journal on 29 May this year.

In addition to having a duty of care to make reasonable adjustments for those who suffer from physical or mental impairments as a result of being obese, employers would be required to make adjustments where workers have difficulty carrying out normal day-to-day activities due to their size. In practical terms, this could mean requests for adjustments to workers' jobs to minimise walking or working machinery or possibly seating arrangements.

Such an outcome would also enable individuals who believe that they have been turned down for employment due to their obesity to claim unlawful discrimination on grounds of their disability.

Another issue is the potential for claims of 'perceived' disability, already permitted under the Equality Act 2010. If the scope was widened by the CJEU, and if an employer is found to have discriminated against them because they believed them to be disabled because of their obesity, this could give rise to a discrimination claim.

Given the prevalence of obesity in the population, a finding by the CJEU that obesity itself can amount to a disability will significantly increase the number of people potentially covered under disability discrimination protection.

It will be several months before we have the judgment of the CJEU; this is certainly one to watch!