Obese employees set to fight for same rights as gay or disabled

The case of Karsten Kaltoft v Billund Kommune was referred to the ECJ by the Danish Courts and the decision of the Court could have important consequences for UK employers.

In the UK, the Equality Act protects individuals from discrimination if they have a “protected characteristic” such as disability. If someone is disabled, for example, an individual will be protected if their impairment is substantial, long lasting, and it impacts on their ability to do normal day to day activities, such as walking or getting dressed. Certain conditions are specifically excluded from protection even if they otherwise meet these tests, such as having a dependency or addiction to alcohol or drugs.

Glenn Hayes, an employment law Partner at Irwin Mitchell, said: “If an obese person is deemed disabled, the duty to make “reasonable adjustments” kicks in. Employers may therefore find themselves under a legal obligation to provide car park spaces close to the workplace entrance for obese employees, provide special desks, or provide duties which involve reduced walking or travelling, or possibly even ensuring that healthy meal options are provided at their staff canteen.

“It may also have wider implications in that employers who make adverse assumptions about a “fat” candidate or employee’s commitment or ability to perform the job, based purely on an individual’s weight, will be deemed to have directly discriminated against him or her and they will also need to take a more active role in ensuring adverse comments are not made against an individual to ensure that no harassment claim is successful.”

To date, the UK has not heard many cases which have directly addressed the question as to whether an obese individual is protected. The only real law was in the case of Walker v Sita which came before the Employment Appeal Tribunal in 2012. This involved an obese man suffering from a number of conditions related to, or made worse by his weight. The court found that that being significantly overweight does not render a person disabled of itself, but could make it more likely that they are disabled.

The case before the ECJ is more significant however in that it will consider whether being obese amounts to a disability without any other associated problems necessarily being present.

Hayes added: “Even if the ECJ decides that being obese can amount to a disability, there are likely to be arguments about whether it is sufficiently “long term” to qualify under UK law, particularly if the individual has only recently put on weight or is trying to lose it by dieting and exercise.”