Following a recent ruling by the European Court of Justice (ECJ), whereby certain cases of severe obesity may amount to a disability for the purposes of the Equality Act, workplace banter relating to a colleagues weight now has to be taken more cautiously, or even curbed.
The ECJ decided that, although there is no general principal under EU law which prohibits discrimination on grounds of obesity in its own right, severely overweight workers may well qualify for protection under the relevant disability discrimination provisions of EU countries, the Equality Act for us here in the UK.
However, obesity may only amount to a disability if it entails a limitation (such as reduced mobility or the onset of medical conditions which prevent a worker from carrying out their work or cause them discomfort when carrying out their professional activity), which as well as satisfying the usual criteria under the Equality Act, may hinder the full and effective participation of that person in professional life on an equal basis with other workers.
Historically, a worker would have to point to some other medical condition, such as arthritis or diabetes, before they could gain protection under discrimination law. This decision may now remove this requirement.
Although the ECJ basically went along with the Advocate General’s recent opinion, it did not stipulate a specific body mass index (BMI) as a reference point. Therefore, it is down to each Court or Tribunal to decide on a case by case basis how to interpret the ECJ’s findings.
In light of this decision, my advice is that employers should consider what reasonable adjustments should be made in relation to obese workers, whilst noting that adjustments should not be made at any cost. Employers may need to seriously consider requests for special parking, changes to duties or location for those with reduced mobility, and even offer larger office furniture. Failure to do so may prompt allegations of, or in the most serious circumstances, claims for discrimination and failure to make reasonable adjustments.
Finally, as the introduction suggests, employees now also need to be mindful of banter concerning another colleague’s weight. Following the ECJ decision it may be held that, in certain cases, this could now be interpreted as harassment.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.