In our previous blog,
"Are obese workers protected from
discrimination" , we confirmed the advocate
general's opinion in the case of Kaltoft v Municipality of
Billund (case C-354/13) that while obese workers were not
automatically covered by EU disability discrimination law, the
worker may be considered to be disabled where he or she is
"severely, extremely or morbidly obese".
The case has now gone before the Court of Justice of the European
Union ("ECJ"), which agreed that there is no
general principle of EU law that prohibits discrimination because
of obesity, but that if the obesity amounts to a disability (and
hinders the full participation of the individual in professional
life on an equal basis with other workers), this may be protected
under discrimination law.
We discuss additional points made by the ECJ below.
Is there anything new to consider?
As is usual, the ECJ followed the opinion of the advocate general which was delivered in July this year. It stated that there was no standalone protection for obese employees. However, the ECJ agreed that obesity may amount to a disability (and therefore be protected on that basis) where there is a:
"limitation which results in
particular from physical, mental or psychological impairments that
in interaction with various barriers may hinder the full and
effective participation of that person in professional life on an
equal basis with other workers, and the limitation is a long-term
one."
The ECJ also echoed the advocate general's point that the
origin of the disability, or the contribution to it by the
individual, was not relevant when determining whether a worker was
protected.
What does this mean?
When considering whether an obese employee or worker is entitled
to any protection under discrimination law, Employment Tribunals
will need to consider whether the obesity amounts to a disability
in the particular individual's case.
Practical points
As with many ill-health issues, the effect on each individual
will be unique, and a separate assessment will be needed to
determine whether an individual is disabled. However, employers
would be wise to consider making reasonable adjustments where an
employee is morbidly obese.
For example:
- Providing particular equipment to work, e.g., a special desk or chair for an office worker
- Considering whether there are duties that the employee may find particularly challenging because he or she requires a long period of time standing or walking
- Considering requests for reduced hours or alternative working where the employee suffers from particular fatigue or other physical symptoms which make it difficult to work core hours
Mr Kaltoft raised that as an obese person, he may face barriers to the employment market on the basis of his physical appearance. While this was not directly considered by the advocate general, it is worth being aware that an applicant who is not selected on the basis of obesity may have a discrimination claim. Office "banter" relating to an obese person's physical appearance may also lead to harassment claims. Managers should be made aware of these sensitivities in equal opportunities training.
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.