One of the Island's hot potatoes, the Discrimination (Jersey) Law is set to come into force in under a month.
The discrimination law continues to stir debate, and the first test case of racial discrimination in Jersey will no doubt be scrutinised to the nth degree. But what about other 'protected characteristics' that the law envisages catering for? Article 5 enables the States to add further 'protected characteristics' and it is surely only a matter of time before sex, age and disability will be on the agenda.
In respect of the latter, there has been an interesting development in the European Union. It must be pointed out that Jersey is not a member state nor an associate member state of the EU. Instead, it enjoys a special relationship with the EU, which allows it to participate in the European Economic Community for the purposes of trade. However, decisions of the EU directly affect the United Kingdom and, when it comes to employment law, UK cases are typically of interest to the Jersey Employment Tribunal.
The case concerns a Danish childminder, who tipped the scales at over 25 stone and had a BMI of 54 (the average BMI being between 18-25). The childminder was dismissed by his local city council in 2010 after reportedly being unable to bend down to tie up his shoelaces. Proceedings for unfair dismissal were commenced and remain contested.
As a preliminary point, the European Court of Justice (ECJ) was asked to determine whether, as a matter of EU law, obesity could be considered a disability. Niilo Jaaskinen, the advocate general of the ECJ concluded that severe obesity, being a body mass index (BMI) of more than 40, could be considered a disability. Furthermore, Mr Jaaskinen went on to say that a 'self inflicted' condition such as severe obesity was worth as much protection as other disabilities and that the "origin of the disability is irrelevant". While this may not be immediately palatable to some, if this were not the case, a person who became physically disabled from participating in a dangerous sport would be excluded, for example. The notion for disability remains objective for this reason.
The ECJ will now have to consider the case in greater detail, and if it agrees with Mr Jaaskinen, the Danish court will be required to decide whether the childminder's obesity meets its definition of a disability.
The UK courts have not yet recognised obesity as a disability, but the ECJ's decision in this case could change that. Employers are obliged to make reasonable arrangements to accommodate any special requirements arising from a person's disability. If severe obesity is a disability, this could mean providing parking spaces closer to the office, altering workspaces and allocating duties that are less physically demanding. Given that the World Health Organisation went on record in late 2013 stating that obesity rates in the UK are "just about the worst in Europe", this is a significant issue.
Jersey can spectate with interest for the time being, but when disability becomes a 'protected characteristic' in the Island, the ECJ's determination of this matter and consequent impact on the UK may well need to be borne in mind by all employers and employees.
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