Against a backdrop of soaring levels of obesity, employers are waiting on the outcome of a European Court ruling which may mean that special treatment has to be given to employees whose weight is causing them problems in the workplace.
Since 1993, obesity levels have doubled, with statistics* showing that a quarter of the current UK population is obese, and the problem continues to grow.
And now, it looks as though the weight of the so-called 'morbidly obese' - who have a Body Mass Index (BMI) of 40 or over - could be felt by employers too.
The Danish case of Kaltoft v Municipality of Billund is currently being considered by the European Court, in which an ex childminder has claimed that his employer terminated his contract of employment because of his weight, and that this amounted to unlawful discrimination. Mr Kaltoft was 5 feet 7 inches and weighed over 25 stone, giving him a BMI of 54, which is extreme or morbid obesity under the World Health Organisation classification.
The Danish court referred the case to the European Court of Justice (ECJ) posing two questions. Firstly, whether EU law prohibits discrimination on the grounds of obesity in the same way that religious beliefs or sexual orientation are protected. Secondly, could obesity amount to a form of disability under the Equal Treatment in Employment Directive.
The Advocate General of the ECJ has responded with his opinion, which will be an influential factor in the final decision by the ECJ later this year. He has rejected the argument that obesity is a protected characteristic, as nothing in the EU Treaty or Charter Articles explicitly refer to obesity as a prohibited ground of discrimination.
But he has said that severe obesity could amount to a disability for the purposes of discrimination law. To meet that definition of disability, it would have to be so severe that it prevented someone from taking a full part in their professional life. He continued to say that it is possible that obesity could amount to a disability for anyone in the morbidly obese category, which is a BMI of 40+.
This suggestion that obesity of a certain severity may alone constitute a disability goes beyond the current position under UK law. The Equality Act 2010 requires that someone must show that he or she has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities and so obesity on its own would not amount to a disability unless this test is met.
This was reflected in a UK Employment Appeal tribunal last year, in the case of Walker v Sita Information Networking Computing Ltd, which ruled that obesity was not in itself a disability, but that any resulting conditions or side-effects could be classified in that way.
The Advocate General also said that he believed the origin of the disability was irrelevant and employers could not claim that the condition was self-inflicted, because by that it would mean that any disability suffered through an individual's risk taking could be excluded, such as horse riding or skiing injuries.
Said employment law expert Kim Faivelowitz of Ward Gethin Archer solicitors: "Although the Advocate General's opinion is not binding, it is very likely to pave the way for a similar judgement from the ECJ which will have to be followed in UK courts and tribunals.
"In terms of what that means for employers, it's likely that they will need to show they are not treating overweight employees less favourably because of their weight and they will have a duty to make reasonable changes to the workplace to help any obese employee.
That could range from avoiding duties that demand mobility through to bigger desks and making sure that other employees don't make comments about their weight."
Kim added: "It's worth thinking about making sure you endorse healthy living and eating in the workplace, so you are encouraging and supporting employees towards positive lifestyle choices."
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* Reference: http://www.hscic.gov.uk/
There was a marked increase in the proportion of adults that were obese between 1993 and 2012 from 13.2 per cent to 24.4 per cent among men and from 16.4 per cent to 25.1 per cent among women. Health & Social Care
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