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Are very fat employees protected against workplace discrimination?

Posted on 21st January 2015
Case law

This was the question answered in this Danish case last month by the ECJ when it ruled that being seriously overweight may mean the employee has a disability. However, despite what you might have read in the media during the run up to Christmas, the ECJ confirmed that there is no general principle of EU law which prohibits discrimination on grounds of obesity – classified as having a body mass index of more than 30.

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whilst being overweight did not give employees any special protection or rights, the effects of obesity may mean the employee qualifies for protection as a disabled person

Karsten Kaltoft v Kommnernes Lansforening [December 2014]

When will obesity be a disability?

The ECJ held that whilst being overweight did not give employees any special protection or rights, the effects of obesity may mean the employee qualifies for protection as a disabled person. This would be the case in the UK under our Equality Act 2010 if the employee has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out day-to-day activities. For example, diabetes or mobility problems may hamper an employee’s ability to live a normal life.

Whilst there was lots of over zealous media coverage, this ECJ judgment simply confirmed established UK case law of Walker v Sita Information Networking Computing Ltd where the Employment Appeal Tribunal in 2012 held that obesity does not itself qualify as a disability. Only the effects of obesity might make it more likely that a claimant qualifies as a ‘disabled person’ under the Equality Act 2010.

In practice

This is an area of discrimination law to keep an eye on. An employee who is obese and suffers from a medical or physical problem caused by being overweight may now be able to ask you to make reasonable adjustments to allow him to stay at work; or perhaps a capability issue that leads to dismissal may now be seen as discriminatory for a reason related to a disability.

In the right cases, reasonable adjustments may include the provision of a wider desk, an allocation of a wider car parking space or reduced fitness standards.

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