Tuesday, 29 July 2014

Is obesity the new disability ?


Is obesity the new disability?            

Does obesity qualify, without more, as a disability?  If yes, then the duty to make reasonable adjustments might include employers having to provide bigger chairs and desks, car parking spaces near the front door, and duties involving less mobility.

The Advocate General has, today, issued an opinion on this point in Kaltoft v The Municipality of Billund.  The first part of the opinion held that obesity was not a protected characteristic per se under the Equal Treatment Framework Directive.  Pretty obvious stuff.

The main part of the opinion considered whether obesity, without more, fell within the definition of a disability.  The Advocate General pointed out the EU definition of disability covers the situation when a physical or mental condition makes "carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing."

He went on to say that in "cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability."  Note: 'can', not 'must' be a disability.

Bottom line: if the individual has a Body Mass Index of 40 or more, so is classified as 'morbidly obese', they might be disabled if the obesity has a real impact on their ability to participate in work.  If not, they won't.

Frankly, Langstaff P said the same thing, but better, last year inWalker v Sita Information.  I'll be talking about this issue as part of the 'Dealing with Long Term Sick Employees' topic at theEmployment Law MasterClass 2014.

The Court of Justice of the European Union normally (but not always) follows the opinion of the Advocate-General.  Expect the judgment in 4-6 months.
           As always if you think you might have an issue and need advice see my HR site or contact me. www.pmhrc.co.uk 
Our thanks to the always excellent Daniel Barnett  site for this timely piece.    www.danielbarnett.co.uk