Obesity and disability

November 5, 2014

Obesity and disability. A weighty issue in Employment Law

With a quarter of the adult population in the UK deemed clinically obese, the increasing weight of our population is problematic in many respects but it is now an issue that should be at the forefront of employer’s minds following the recent case of Kaltoft v The Municipality of Billund.

Can Obesity really be a Disability?

The short answer is that Obesity can be a disability if an employee can satisfy the definition of “disability” under the Equality Act 2010.

A person is considered to have a disability if he or she has a physical or mental impairment and it has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

What is Obesity?

The World Health Organisation defines Obesity as a ‘chronic and durable illness’ and guidance provided by the National Health Service states that an employee with a Body Mass Index (BMI) of 30 or more is likely to be deemed ‘obese.’

Interestingly it is irrelevant if the employee is responsible for their Obesity, however the Government encourage an employer to support and encourage healthy lifestyles within the workplace, even by simply providing healthy meal options in the staff canteen.

Surely this healthy lifestyle campaign should involve an employee taking positive steps themselves to reduce their BMI, especially if they are culpable for the Obesity? Unfortunately not. If an employee is considered to be Obese, an employer must take this seriously and not treat the employee any differently to another employee that may be suffering from a different condition or illness.

Reasonable Adjustments within the workplace

As with any disability, an employer needs to be alive to their duty to make reasonable adjustments. Assuming an employees Obesity renders him ‘disabled’ remembering the definition above, an employer may have a duty to make suitable adjustments to perhaps assist with endurance or mobility.

Examples of suitable adjustments include:-

•  Providing more suitable chairs and desks;
•  Designated car parking spaces nearer the premises front door;
• Duties involving less mobility/lighter duties;
• Reduced travel.

What does this mean for employers?

It is important given the recent decision, that employers do give consideration to Obesity as a potential disability.

If an employee’s weight has a long-term adverse effect on the ability to carry out their job, then an employer is to treat Obesity as they would any other employee suffering from a recognised condition or disability.

This will inevitably create a tricky issue for employers as recognising when an employee is obese may not be easy and it should not be the case that an investigative process is carried out to ascertain which members of staff may be obese or clinically overweight. If any employee’s weight interferes with their ability to carry out their job, this will be the trigger for the employer to sensitively discuss the situation with the employee. Of course, with a condition like Obesity, it will be difficult for an employer to turn a blind eye to it.

An interesting issue is that of ‘knowledge’. If an employer is not aware of a condition or disability, it cannot reasonably be required to make suitable adjustments for an employee. So, at what point does the employer’s defence of their claim they were not aware of the condition disappear?

It will be interesting to see how future UK case law interprets obesity when a claim for discrimination is made. It may be that we follow suit with the US, where Obesity is recognised as a disability within the realms of discrimination law in any event.