Walking away from Walker? Obesity may be a disability

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Posted in:HR and Employment|July 31, 2014 | Join the mailing list

Imagine applying for a job – how would you feel if your application was rejected not because of your credentials, but because you were overweight? A recent survey has shown that obesity is treated as an “undesirable trait” by over half of those in HR and
recruitment, who believe it to be a reflection on a candidate’s personality and performance.

Perhaps surprisingly, this is not currently unlawful discrimination in the UK.  However, if a worker (or indeed job applicant) is diagnosed with a medical condition – which might be linked to their obesity – then they will have the “protected characteristic”
of a disability, if that condition meets the test set out in the Equality Act 2010, namely that the individual has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
 
The Employment Appeal Tribunal, in the case of Walker v Sita in 2013, stated that obesity in itself is not an impairment within the meaning of the test for disability, although the claimant in that case had numerous conditions which were linked to his weight
and whose effects did meet the test, leading to the conclusion that he was protected from discrimination on the grounds of disability. 

However, we have now had a recent indication from an Advocate General of the Courts of Justice of the European Union (CJEU) that the position under European law may be different.  On 17th July 2014, in relation to the ongoing Danish test case of Kaltof v The
Municipality of Billund, the Advocate General concluded that it should be unlawful to discriminate against someone on the grounds of obesity if their
obesity (our emphasis) “plainly hinders participation in professional life”.

Opinions of EU Advocates General are advisory only, and the CJEU is not required, when reaching its eventual judgment, to agree with the Advocate General’s opinion or to follow it.  However, more often than not it does and it will be very interesting to see
what view the Court takes when it makes its judgment in the Kaltof case.

If the CJEU follows the Advocate General’s opinion, then this could mark a significant extension of the protection from discrimination on the grounds of disability under current UK law, and would produce many questions about what the extent of protection from
disability discrimination should be.  Importantly, the Advocate General said that it is irrelevant if the condition is self-inflicted. Would the same logic be applied to other analogous ‘self- inflicted’ conditions? Alcoholism, which may of itself have a similar
effect to that described by the Attorney General, is currently expressly excluded from the definition of disability – would that be incompatible with EU law? 

Issues surrounding degree of obesity and evidence of impairment would undoubtedly arise (as they currently do in relation to many disability discrimination claims).  On the question “when is obesity considered disabling?” the Advocate General suggests that
the line is drawn at a body mass index of 40, also known as morbid obesity. However, in the test case Mr Kaltof was seeking to argue that he was not disabled.  He had a BMI of 54 and argued that his size is “no problem” – so it would appear things aren’t clear
cut. Such uncertainty would likely cause expensive headaches for employers (and others, such as service providers, who have obligations under the Equality Act 2010).

If the CJEU does agree with the Advocate General, then guidance will need to be given, and the Courts and Tribunals in the UK will undoubtedly be forced to consider the same question soon.  As 4.5% of the UK population are morbidly obese and 62% overweight,
the effect of any such change in the law on employers would be significant, including in recruitment and dismissal decisions, and the duty to make reasonable adjustments. All eyes will be watching the CJEU in the following months for a decision, including
ours – so watch this space for developments.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Kim Freeman-Smith of the Berg Employment Team on 0161 833 9211 or email her at
kimf@berg.co.uk.

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@Berg_HR

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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