This could be an alarming cause for concern for employers given that more than 64% of adults are classed as being overweight or obese in the UK, according to the Overseas Development Institute.
The ECJ found in the case of Karsten Kaltoft v Billund, in which a childmider who weighed 25 stone and had a body mass index (BMI) of 54 was dismissed because his size prohibited him from carrying out some of the duties of his role, that while no general priniciple of European Union law prohibits discrimination on the grounds of obesity, the condition falls within the concept of ’disability’ and whether it hinders participation in professional life.
The ECJ has now ruled that obesity in itself is not a disability, but the symptoms and the medical and physical side effects of obesity can be.
Sarah Henchoz, employment partner at law firm Allen and Overy, said: “Essentially the decision says, as other cases have said before it, that the focus should not be on the cause but on the consequences. Obesity is still not a disability, but if an employee’s obesity results in physical or mental impairments, for example reduced mobility, which have a long-term impact on the day-to-day activities, then those impairments will attract protection.”
Protection could come in the form of benefits offerings, and although it may be more costly and complex to insure an obese employee, employers will not be allowed to exclude employee participation in certain benefits, such as private medical insurance schemes, group income protection or group life assurance.
Reasonable adjustments
There is also a possibility that the ruling could mean that employers will have to make, and pay for, ‘reasonable adjustments’ to their workplace environment or practices. They may also be expected to provide ‘lifestyle’ benefits, which might include specific work equipment (such as rising desks or supportive chairs), access to private counselling or reasonable time off work in which employees can seek weight-management support.
Crowley Woodford, employment partner at law firm Ashurst, said: “Employers must remain alert to the fact that an employee whose mobility or mood is affected by obesity, such that it limits their ability to participate in the same way as others in professional life, could be protected. In such cases, employers will have to make ‘reasonable adjustments’ to help obese people overcome the effects of such related disability or potentially face a claim.”
Limits to employers’ duties
But employers’ duties are not limitless. They are unlikely, for example, to have to provide a paid-for carer for employees at work, or ameliorate disabled employees’ sickness absence and pay rights.
Marcus Rowland, a partner at law firm Wiggin, added: “The idea that this decision is going to open the floodgates to lots of claims is pretty far-fetched. That’s not to say that it will never be necessary to make adjustments to cater for obese workers, but it is only going to be relevant to a relatively small minority of cases.”
