Here Paul Kelly, Head of Employment at Blacks Solicitors LLP, discusses obesity discrimination and what business leaders need to look out for.
Although obesity is not in itself a protected characteristic, under the Equality Act 2010 employers can still fall foul of the law by unwittingly discriminating against overweight employees if they ignore physical or mental impairments arising out of obesity.
In the 2012 UK case of Walker v Sita Information Networking Computing Limited, the Employment Tribunal found that an obese employee with a number of chronic health conditions was not discriminated against because of a disability, rather his weight. Whilst it was accepted that the employee had a number of impairments, he was not disabled for the purposes of the Disability Discrimination Act 1995 because they had been exacerbated by his obesity.
On appeal, the Employment Appeal Tribunal reversed this decision, finding instead that the original tribunal should have focused on how the employee’s various conditions affected his day-to-day life, not what had caused them. Therefore, being obese is not on its own a disability, but it may give rise to physical or mental impairments that are.
The issue of obesity was again addressed by the European Court of Justice in 2014 in the case of Kaltoft v Kommunernes Landsforening. Here, an obese childminder claimed that he was sacked because of his weight and that this amounted to discrimination. Court took the view that whilst discrimination on the grounds of obesity is not prohibited, if an employee is so overweight that they cannot participate fully in professional life on an equal basis with other employees then, irrespective of how they became obese, they can be considered to be disabled.
However, in practice this means that just because an employee is obese it does not automatically follow that they are disabled for the purposes of the Equality Act 2010. The key is to assess whether their weight has any adverse impact on their ability to perform their duties (such as limited mobility in the workplace).
As obesity may potentially give rise to disability protection, employers need to consider making reasonable adjustments to the working environment to accommodate severely overweight employees who may be disabled as a result. This includes not discriminating against overweight employees in the recruitment process and adapting the working environment to accommodate their needs where reasonable to do so.