At the end of 2014 that obesity may amount to a ‘disability’ for the purposes of the Equality Act 2010 and discrimination claims.
Previously, we have reported that the Advocate General has stated that ‘severe obesity’ could be a disability for the purposes of the Equality Act 2010. However, the World Health Organisation (“WHO”) ranks obesity into three broad classes by reference to body mass index and only the minority would be considered to be “severe”. In the issue that came before the ECJ (and for which the referral to the Advocate General was made for guidance), a Danish worker asserted that he was disabled for these purposes despite not having “severe” obesity under the WHO rankings. The European Court of Justice (“ECJ”) then, whilst agreeing in principle with this approach, did not limit the possibility that a person could only be disabled if he or she suffered from ‘severe’ obesity.
In short, the ECJ held that whilst obesity itself is not a ‘physical or mental’ impairment for the purposes of the legislation, the effects of obesity could result in an individual being a ‘disabled’ person in order to pursue a discrimination claim. So it became relevant to consider the extent to which this may have a substantial adverse effect on a person’s ability to lead a full and effective participation in professional life on an equal basis or otherwise is hindered in the exercise of such activity when compared with other workers. An individual’s own contribution to obesity was not relevant.
As a reminder of our earlier Bulletin article on this case, Mr Kaltoft worked as a child-minder until he was dismissed. He claimed his dismissal related to his alleged disability. He disputed that he was unable to perform his job, and said to the media that:
“I can sit on the floor and play with them, I have no problems like that…I don’t see myself as disabled. It’s not ok just to fire a person because they’re fat, if they’re doing their job properly”
It was found that Mr Kaltoft could be a ‘disabled’ person where his obesity hindered his full participation at work. The case was referred back to the local (Danish) court to determine whether Mr Kaltoft was in fact a ‘disabled’ person.
The EAT has, in the UK jurisdiction, reached a similar view before now and so recruitment agents acting on behalf of employers should now have regard to the effects of obesity in determining whether the person may be disabled for the purposes of the Equality Act 2010 and where those effects have an adverse impact on a person’s activities and place them at a substantial disadvantage in the workplace, recruitment agents acting on behalf of employers may be under a duty to make reasonable adjustments. As such, they should avoid causing any detriment to the employee by reason of or for a reason arising from his or her obesity, as in other cases of disabled employees.