The European Court of Justice has answered this question with a helpful “maybe”!
Before you panic and throw away all the mince pies and cakes around the office, the briefing note below sheds some light on the ECJ’s decision and sets out the implications for you and your business.
Is obesity another characteristic which qualifies for protection against discrimination?
It doesn’t look like it.
The ECJ was very clear that obesity in itself is not a ground for protection against discrimination, so, for the time being at least, the long list of “protected characteristics” that you are used to (sex, race, age, sexual orientation etc) is not being extended.
But before you breathe a sigh of relief, you need to consider the next question!
Does obesity constitute a disability and could it, therefore, lead to a disability discrimination claim?
It could do.
This will be the case if the obesity “entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”
But what does that mean? Essentially, it means that an obese employee may be considered disabled if their obesity makes it difficult for them to fully participate in work, e.g. because it affects their mobility or leads to medical conditions which make carrying out work very difficult or uncomfortable.
Whether an obese employee is disabled will, therefore, be a question for our UK courts and Tribunals to decide depending on the facts of each particular case.
Are the origins or cause of the obesity relevant?
The key question is whether the obesity hinders the employee’s full and effective participation in professional life.
Must an employee be morbidly obese to be considered disabled?
Earlier in the summer, the Advocate General suggested that a worker would probably have to be morbidly obese or have a BMI of 40 or more to be considered “disabled” on obesity grounds.
However, the ECJ avoided this approach. They advised that the focus should be on the impact a worker’s weight has on their ability to perform day-to-day activities (the test we are familiar with when considering if someone is disabled).
What are the implications for you and your business?
There have already been cases in which physical and mental conditions resulting from obesity have been considered disabilities. However, the fact that obesity in itself may now be a disability may trigger more claims from obese employees or job applicants.
You should, therefore, take care when dealing with obese employees or job applicants.
- treat obese employees less favourably because of their weight;
- harass or allow your other employees to harass an obese employee- be aware that good natured “banter” and jibes directed at an obese employee could constitute harassment; or
- reject a job applicant because of their weight or perceptions you may have as a result of this.
- consider whether there are any “reasonable adjustments” you should make to help a disabled employee perform their job. These could include:
- providing specialist furniture (e.g. a wider or more supportive chair) or equipment (e.g. larger sized uniform or PPE)
- providing parking closer to work (if an employee has reduced mobility); or
- adjusting the employee’s duties.
- consider updating your Bullying and Harassment Policy to refer to harassment on the grounds of obesity.