Obesity: tipping the scales of discrimination

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According to the World Obesity Federation, 62% of British people thought that discrimination against overweight people would be ‘likely’. And in the sphere of recruitment, there’s a perception that employers are less likely to appoint candidates who are obese.

Under the Equality Act 2010, discrimination against one of the nine ‘protected characteristics’ (like age and disability) is unlawful, but obesity isn’t one of these. So what protection does the law give for discrimination on the grounds of obesity?

While discrimination on the grounds of obesity isn’t unlawful, obesity may be deemed a disability – which is a protected characteristic. To qualify as a disabled person, a person must have a ‘physical or mental impairment’ that ‘has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities’.

What’s happened in court?

In a 2014 case, FOA (Kaltoft v Billund), the European Court of Justice ruled that obesity could be considered a disability, and therefore protected against discrimination, in certain circumstances.

Mr Kaltoft, a childminder for a local council in Denmark, was clinically obese and was made redundant. He claimed his obesity influenced the decision and he subsequently brought a claim in the District Court, which referred the question of whether obesity could be classed as a disability to the ECJ.

While the ECJ held that obesity itself cannot be a ground for protection against discrimination, it then assessed whether obesity could be protected under disability discrimination.

The ECJ decided that if, under given circumstances, a worker’s obesity results in ‘physical, mental or psychological impairments’ that ‘may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one’, obesity could be deemed to be a disability under the European Directive.  The origin or contributions to the obesity are irrelevant.

What does this mean?

Essentially, an employee with long-term obesity may have protection as a disabled person if it prevents them carrying out work on an equal basis with their colleagues. It could also qualify if they can do their job, but are uncomfortable doing so.

The UK courts will have to look at the facts of every separate case, deciding whether each obese individual’s claim for discrimination meets the definition of disability.

Employers should now take care when looking at whether their obese employees’ limitations reach the threshold of having a negative impact on their ability to carry out their job in the same way as their colleagues. Any less favourable treatment linked to their weight could potentially be held under the Equality Act 2010 as disability discrimination, and may trigger a duty to make reasonable adjustments in the workplace.