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Not Over Till The Fat Lady Sings – Are We One Step Closer to Obesity Being a Disability?

Over the past couple of weeks the newspapers have been talking about the opinion of the European Advocate General in the case of Kaltoft v Municipality of Billund. It is his opinion (and therefore not yet binding) that obesity can now be considered a disability. If the European Judges agree, then obesity will become a protected characteristic although quite how it will be defined is a matter for debate.

In the Kaltoft case, the claimant was employed as a child-minder. His weight had never dropped below 160kg (over 25 stone),and his body mass index (BMI) was 54. According to the World Health Organisation (WHO),anyone with a BMI of 40+ is classified as severely or morbidly obese. There was a reorganisation because fewer children were being enrolled with the service, and Mr Kaltoft was made redundant. His employer did not explain why he had been selected, and he complained he had been discriminated against on grounds of his obesity.

The Advocate General decided that where obesity has reached such a degree that it hinders full participation in professional life, it can be considered as a disability. The obesity would have to be severe enough to have an impact on factors like mobility, endurance or mood. Someone falling within between a BMI of 30 and 40 would, he said, not be regarded as disabled just because of their obesity.

So how would this affect companies in Britain if the judges agree with the AG? UK law has already afforded some protection for obese people, albeit indirectly. In the case of Walker v Sita Information Networking Computing, the EAT decided that although obesity is not itself a disability, it should be a warning sign for employers to consider what might have caused it or whether other ill health conditions which could be disabilities flow from it. If caused by diabetes or long-term depression, or anything which falls under the current definition of disability, then it could be a symptom of a disability and the duty to consider reasonable adjustments would apply.

In Walker, the court recognised that certain conditions can lead to obesity without people having full control over their eating habits or metabolism. A parallel can be drawn with a condition like alcoholism. Alcoholism is an excluded ill health condition under The Equality Act 2010, but if an alcoholic then suffers from a related condition which flows from the alcoholism, for example, depression, the secondary condition is capable of being a disability.

If the judges in the Kaltoft case decide to follow the AG’s opinion, this will change. It will not matter whether the morbid obesity is brought on by diabetes or simply a habit of over-eating; if the employee meets the criteria of whatever definition is decided on then the employer will have to consider reasonable adjustments.

Such a decision really flies in the face of the original purpose of the anti-discrimination legislation which should protect people who suffer a genuine disadvantage because of a protected characteristic, not a self-imposed one. The vast majority of overweight people are overweight through over-eating and lack of exercise. Our case work suggests that many are in denial about what they consume and if obesity is classified as a disability this will give some form of official sanction to their state. Mr Kaltoft is 25 stone. That didn’t happen overnight.

A ruling of this type could make life difficult for employers, since we are told that 60% of UK adults are already ‘overweight’ and 4.5% are morbidly obese. In certain jobs it would be much more difficult to enforce necessary rules on physical ability and proportion. Although disability can be a reason to remove someone from a job if reasonable adjustments are truly impractical, the risk of a discrimination claim often makes businesses more cautious about taking necessary steps to function efficiently.

If the full court adopts the AG’s opinion staff may well need training. While many employees are likely to sympathise with colleagues who they feel have a disability through no fault of their own, they may not feel the same about elective obesity. The Advocate General’s opinion made it clear that even if the obesity was self-inflicted it does not detract from the right not to suffer discrimination.

One practical question for employers is likely to be establishing when an employee who is overweight tips into being morbidly obese. It will be a delicate issue and just raising the issue could be perceived as offensive.

This may also make life difficult for some employees. People who make efforts to take care of themselves may find themselves treated less favourably than people who do not, and people who are disabled due to a non-elective disease may find they have new competitors for available reasonable adjustments.

It may be a while before we find out the judges’ decision, but the court tends to follow the AG’s opinion, though that’s not automatic. Will obesity become a protected characteristic? I sincerely hope that it does not and the court reaches a more sensible conclusion

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