Q: Can an employee who simply overeats and is consequently overweight be protected for the purposes of employment law?
A: Potentially, yes. Whilst there is no free-standing protection against discrimination on the grounds of obesity, an employee may be protected under disability discrimination laws.
This question was at the heart of a recent European case called FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund heard by the Court of Justice of the European Union in December 2014. It held that whether someone who is obese can be classified as disabled will depend on the particular circumstances but it was a possibility where the person suffers from a long-term physical, mental or psychological impairment that may hinder their full and effective participation in professional life on an equal basis with others. Although this is a Danish case, its application is still relevant for UK employers.
In England and Wales, the Equality Act 2010 states that a person is disabled if they satisfy the following conditions:
- they have a physical or mental impairment;
- that impairment has an adverse effect on their ability to carry out normal day-to-day activities; and
- the impairment is also both substantial and long-term.
This means that employees who are severely obese or who suffer other conditions as a result of them being overweight (for example, diabetes, depression or knee pain) could fall within the definition of "disability" and therefore be protected from discrimination, harassment and victimisation. The employer would also have a duty to make reasonable adjustments to their working environment, for example, providing a more suitable desk chair or allowing them to work from home if they have difficulties travelling.
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.
