The UK reportedly has the highest obesity rate in Europe, with over 20% of the UK population now obese. This means that obesity, which can result in severe health consequences, will increasingly become an issue for employers. Obesity will inevitably impact on an employee's sickness absence, but does it also mean that the employee is disabled, and therefore protected by disability discrimination law?
Interestingly, in the US, recent cases indicate a growing acceptance that obesity is a condition which is covered by US disability discrimination law. Whether obesity amounts to a disability under UK discrimination law is controversial, and an EAT decision on this issue has been long-awaited. The EAT has now considered in the case Walker v SITA Information Network Computing Ltd whether an obese employee, who suffered from numerous physical and mental conditions, was protected under disability discrimination law.
What happened in this case?
Mr Walker, who weighed 21.5 stone, had numerous physical and mental conditions which meant he had difficulties in his day-to day life, including asthma, knee problems, diabetes, high blood pressure, chronic fatigue syndrome and anxiety and depression, which could not be attributed to a recognisable pathological or mental cause. The occupational health specialist concluded that he suffered from "functional overlay" which was compounded by his obesity.
Mr Walker brought a disability discrimination claim, and the issue for the Tribunal to consider was whether Mr Walker was disabled. Although this claim was brought under the old legislation, the definition of disability under the Equality Act 2010 is the same.
The Employment Judge ruled that he was not disabled as there was no physical or organic cause for his symptoms. Mr Walker appealed.
The EAT decision
The EAT concluded that Mr Walker was disabled. It made it clear that, to assess whether a claimant is disabled under the Act, Tribunals must consider:
- Whether the Claimant has an impairment.
- Whether the impairment is physical and/or mental.
There is no need to focus on what has caused the impairment. The focus should be on the effect of any impairment and not on the underlying cause.
The EAT did say the cause of any impairment may be relevant to an assessment of whether the Claimant is genuinely suffering from an impairment and to the length of time any impairment might last; giving the example of someone who was obese but was likely to succeed in losing weight and would therefore not continue to suffer from any impairments. In that case, if the impairments are unlikely to last longer than 12 months, they would not be disabled. However, the EAT stressed a Tribunal should not overlook the effects of an impairment because they cannot identify a precise cause, as had happened with Mr Walker.
What this decision means for employers
There are a number of key points employers can take from this case – and these aren't just limited to the assessment of whether an individual who is obese is disabled:
- In assessing whether an individual is disabled, consider whether an employee suffers from a physical and/or mental impairment.
- Bear in mind that if there is no apparent underlying cause of a supposed impairment, this may mean that the employee doesn't actually have an impairment.
- Consider how long the underlying cause (such as obesity or alcoholism) is likely to last, and therefore whether the impairments are likely to last for less than 12 months.
- The fact that an employee is obese doesn't necessarily mean that they are disabled. However, it may make it more likely that a Tribunal would ultimately conclude that they have an impairment, and will be considered to be disabled.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
