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22nd July 2014

You can't sack me because I'm overweight.

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Someone is disabled under the Equality Act 2010 if they have 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. Obesity is not of itself a protected characteristic for the purposes of the legislation.

In the case Kaltoft v The Municipality of Billund, Kaltoft claimed before a Danish Court (which made a reference to the European Court of Justice (ECJ)) that he was dismissed from his childminding position because of his obesity. He argued that this constituted unlawful disability discrimination. Kaltoft is 1.72 metres tall and weighs over 160 kilograms which means that his Body Mass Index (BMI) is 54. This is ‘severe, extreme or morbid obesity’ or class III obesity under the World Health Organisation classification.

In the Advocate General’s (AG) opinion, even though obesity is not a protected characteristic per se, it may still fall within the scope of the Equal Treatment Framework Directive. However this is only if ‘the condition of obesity has reached a degree that it…… plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails.’ The AG further opined that ‘most probably’ only a BMI of over 40 would adversely affect a person’s participation in professional life to such a degree that it amounts to a disability, by reason of problems suffered in relation to issues such as their mobility, endurance and mood. The AG also commented that the reasons for the person’s obesity are irrelevant to the determination of the question.

We are likely to have to wait 4 to 6 months for the judgment in this case which has assumed particular significance because of rising obesity levels in the UK and elsewhere. Some statistics say that 64% of adults are now overweight and that half of Britain’s population could be obese by 2050. The AG’s opinion is not legally binding but if (as is usually the case) the ECJ agrees with him employers will need to think carefully when recruiting morbidly obese job applicants and when managing and/or terminating the employment of morbidly obese employees in the future.

An employer must seek to avoid any substantial disadvantage suffered by a disabled person compared to non disabled persons in relation to a particular provision, criterion or practice applied by them or in relation to a physical feature of their premises. This duty to make reasonable adjustments arises where the employer knows or ought reasonably to know of the disabled person’s disability and that the person is likely to be placed at a substantial disadvantage. Unlike some disabilities, morbid obesity is self-evident so in that sense it seems unlikely that an employer would be able to argue that they were not aware of their obligations. Equally however trying to sensitively establish exactly how heavy a person is may well cause some managers a real headache. Practically trying to accommodate such staff could also pose an ongoing challenge for employers as adjustments such as providing more workspace, providing special chairs or desks, reducing the amount of travelling or walking involved in the job, providing parking close to the office and providing healthy meal options in the staff canteen may be needed. Whether the latter would help however remains to be seen as some commentators say that a judgment in line with the AG’s opinion will incentivise overweight people to put on even more weight in order to gain protection.

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