Obesity as a disability: five key talking points for employers

The European decision late last year on obesity in the workplace confirmed for UK employers that obesity can constitute a disability. We highlight five key talking points that arise in this week’s XpertHR podcast on disability discrimination and obesity.

1. UK employers must follow this decision on obesity

Although the Karsten Kaltoft v Billund Kommune case was initiated by a Danish court and heard by the European Court of Justice, it will be applied by UK employment tribunals.

The publicity that this case has generated may mean that UK claimants are more likely to bring disability discrimination claims on the basis that their weight problems constitute a disability.

2. Bar is set high for an obese employee to be considered disabled

While the European Court of Justice stopped short of setting a minimum weight or Body Mass Index (BMI) before an individual can be considered disabled, it is clear that moderate obesity is unlikely to be considered a disability. Morbid obesity may be a disability if the individual’s weight hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.

3. Whatever an employee’s weight, an associated condition may be a disability

It may be that the individual is disabled because of another condition, so employers should bear in mind that conditions such as asthma, diabetes, breathing problems, heart disease and bowel symptoms may bring the individual within the definition of a disability, irrespective of whether or not the obesity itself is a disability.

Obesity can also affect quality of life and lead to psychological problems, such as depression, which can also constitute a disability.

4. Cause of the individual’s obesity is not the key factor

Previous case law and the UK Government’s guidance on the meaning of disability suggests that the focus of enquiry is on the effect of the impairment and not its cause. The fact that an individual is obese because of a lack of self-control in what he or she eats is not a bar to them being considered disabled.

5. Making reasonable adjustments is the key challenge for employers

Employers are under a duty to make reasonable adjustments for obese employees and job applicants. This could include providing an employee with specialist furniture (such as a larger chair) or a parking space nearer to the workplace, or giving an individual the opportunity to work from home if his or her mobility is severely affected.