UK: Obesity: Is It A Disability Or Not? New Discrimination Law?

Last Updated: 8 July 2014
Article by Alison Downie and Zachary Brown

A case is currently being considered by the Court of Justice of the European Union concerning obesity and a ruling is expected shortly. Whichever way the Court decides, this will be an important decision for UK employers and employees. Below we confirm the current UK law on this tricky issue and the reasons this might change shortly.

Obesity under UK law

Under the Equality Act 2010 a person is considered to have a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. A person who has a disability has protection under the Equality Act in various ways to prevent unlawful discrimination against them. In the workplace this includes protection from being dismissed solely because of their disability, and the right to have reasonable adjustments considered and made by their employer to enable them to work.

The current position under UK law is that obesity itself is not a qualifying disability for such protection from discrimination.

This was confirmed in the most recent reported decision on obesity by the Employment Appeal Tribunal (EAT). It ruled last year in the case of Walker v Sita Information Networking Computing Ltd that health complications which are caused by a person's obesity may constitute disabilities but obesity is not of itself a disability.

This was a complicated case because of the medical evidence but the facts help in understanding how obesity is treated by the Tribunals at present. Mr Walker brought a claim of disability discrimination against his employer. He was obese, weighing 21.5 stone. He suffered from a constellation of symptoms causing significant difficulty to his day-to-day life, including asthma, chronic fatigue, knee problems, bowel problems, anxiety and depression. The EAT held that these symptoms could not be attributed to a recognisable pathological or mental cause and so could not constitute the physical or mental impairment which is necessary to qualify as a disability. The symptoms were instead regarded as a "functional overlay" which was worsened by Mr Walker's obesity.

The EAT considered that the purpose of the definition of disability was not to confine an impairment to that which can be shown to have a medical label, so as to be a recognised physical or mental condition. Rather, it is the impairment itself which should be considered instead of the possible cause of that impairment. This is so, even if the cause of the impairment is a condition which is excluded from the definition of disability, as with obesity.

Therefore, although obesity itself is not a disability, being obese may make it more likely that someone is disabled because it may have caused or contributed to some other physical or mental impairment. That is the only relevance of obesity to a qualifying disability. So if a person is obese this may provide evidence which may make it more likely that an Employment Tribunal would conclude that the individual suffers from an impairment and so is disabled.

If, for example, a person suffers from obesity which gives rise to impairments such as mobility restriction and breathing difficulties to the extent that the person cannot walk more than 50 yards without stopping to rest, this is the effect which must be considered for the purpose of assessing disability, not the person's underlying obesity.

Development in European law

Earlier this month the Court of Justice of the European Union (CJEU) heard a case referred by Denmark (Karsten Kaltoft v Billund Kommune) which may turn the current position under UK law on its head.

The case concerned Mr Kaltoft, an obese (25 stone) child minder employed by a local authority. He claimed that he was dismissed by his employer due to his weight. The local authority defended this, asserting that he was dismissed due to a decline in the number of children but that, at any rate, Mr Kaltoft was unable to perform his duties due to his size, citing the fact that he was unable to tie a child's shoelaces.

The Danish courts asked the CJEU to determine whether obesity should be considered to be a disability under the European Employment Equality Directive, which prohibits discrimination in employment on the grounds of disability. The case was heard on the 12 June 2014 but the CJEU's decision is not expected for some weeks. When the decision is released it will be binding across the EU, including the UK.

Potential implications

An estimated 25% of the adult population in the UK is obese and over 50% are overweight. Obesity is also rising across all European countries. If the CJEU determines that obesity is a qualifying disability the implications for both employers and employees will therefore be significant in the UK and indeed across Europe.

In the event of such a ruling, employees who are obese will have the same legal protections as those with other physical or mental impairments, including protection against unfavourable treatment or dismissal on the grounds of their size.

Employers would have a duty to make reasonable adjustments to the workplace or working arrangements to accommodate obese employees. This might include taking account of the requirements of obese employees when designing the office layout or when considering which tasks, such as those involving physical exercise, are assigned to such employees.

The possibility of such a ruling, together with the latest figures on the rapidly rising levels of obesity across Europe, has re-ignited the debate as to whether obese employees should have such protection. One key view emerging is that obesity is a lifestyle choice and one which can usually be avoided, so is different to other long term impairments. As such, it should not count as a disability but employers should instead assist obese employees by providing a healthy work environment with access to support, to reduce their obesity, and employees should be expected to co-operate with their employers in dealing with it.

Is it likely that obesity will be held to be a disability by the CJEU? Possibly not. Some individuals who are classified medically as obese do not suffer long term physical or mental impairments at the outset, so should they be classified as disabled and have the protection afforded by that?

Impairments arising from or caused by the underlying obesity can bring a person into the definition of disability in any event so they would gain protection from discrimination, following the decision in Walker. The CJEU may well adopt a similar approach and rationale to the EAT in Walker. So it appears less likely that the CJEU will rule that obesity on its own is a qualifying disability, depending on the medical evidence available to that Court. It is hard to see how they could so rule without adding some additional criteria which must be present for obesity to be a disability, such as identifiable long term physical or mental impairments – but this would make it redundant to classify obesity as a disability at all.

The ruling is awaited with keen interest and will be reported in GD Online.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.