One quarter of the adult population is now classed as obese and it is predicted that half of all adults could be obese by the middle of the century. With this in mind, should obesity be regarded as a disability under the Equality Act 2010 (Eq A) alongside the other protected characteristics such as sex, race, sexual orientation, religion and belief and age and, if so, how should employers manage the risks involved?
In a recent Danish case (Kaltoft v the Municipality of Billund) to be considered by the Court of Justice of the European Union (CJEU), the Advocate General (AG) expressed the preliminary opinion that obesity in itself is not a protected characteristic. However, the AG went on to say that obesity is capable of being a protected characteristic where a person is classified as morbidly obese.
Mr Kaltoft was dismissed from his employment as a child minder with the Municipality of Billund. During his 15 years’ service, he had never weighed less than 25 stone (160 kg) and had a BMI of 54. His employer funded gym memberships and exercise classes to help him lose weight but attempts proved fruitless. Mr Kaltoft was eventually dismissed when his employer decided he could not carry out significant aspects of his role including being too overweight to tie a child’s shoe laces. Mr Kaltoft brought a disability discrimination claim against his employer which was referred by the Danish Court to the CJEU to consider a number of questions including whether obesity could amount to a disability under the Equal Treatment Directive.
The AG concluded (unsurprisingly) that EU law does not include a general principle prohibiting employers from discriminating on grounds of obesity. However, the AG went on to say that severe obesity can be a disability for the purposes of the Equal Treatment Directive if it “hinders full and effective participation of the person concerned in professional life on an equal basis with other workers”. It is then for the national court to decide whether the person’s obesity amounts to a disability in their particular case.
The AG commented that “mere” obesity (defined by the World Health Organisation as someone with a BMI of 30 to 34.99) is insufficient to amount to a disability whereas severe, extreme or morbid obesity (someone with a BMI of over 40) may create problems with mobility, endurance and mood that amount to a disability. The AG didn’t decide whether or not Mr Kaltoft (with his BMI of 54) has a disability but the clear inference was that he probably does.
If a person’s obesity is severe enough to qualify as a disability, the employer may face a discrimination claim if the employee is dismissed, subjected to a detriment, harassed, victimised or placed at an unfair disadvantage because of their weight. In addition, employers are under a duty to make reasonable adjustments in order to counter the effects of a disability. This could include, for example, creating reserved car parking for obese staff, adjusting office furniture, widening doors, installing chair lifts and subsidising gym memberships.
Employers in some sectors or businesses may face particular challenges and wish to rely on the exception that a particular BMI, weight or appearance is a genuine occupational requirement for the job. For example, where there are restrictions on weight and limited space on board an aircraft, an employer recruiting a flight attendant is likely to require somebody who is not morbidly obese to do the job. A further example may be a gym that is recruiting a personal trainer. A morbidly obese applicant is unlikely to be able to carry out the occupational requirements of the role. Others may wish to employ staff who fit their corporate image or the nature of their business e.g. premium fashion retailers. In these circumstances, the argument that a particular body shape or size is an occupational requirement is unlikely to be successful.
Employers would be well advised to take great care when recruiting, disciplining, managing performance or dismissing employees who may be technically morbidly obese and should avoid making stereotypical assumptions about their capabilities or lack of capabilities. Employers should make further enquiries about a person’s obesity if it is considered to be an issue i.e. what are the effects of the obesity, are there any underlying medical conditions which have led to the obesity and are there any other associated conditions which require further investigation? It is only by addressing these questions that you can decide whether the individual may or may not be disabled and consider what reasonable adjustments can be made for their condition.
The CJEU is not bound to follow the AG’s decision (although it often does) and is likely to issue its judgment in the next four to six months. A further update will follow.