Is obesity the new disability?

According to the latest statistics published by the Health & Social Care Information Centre, in 2012, 24.4% of men and 25.1% of women in the UK were obese. These shocking statistics are likely to have considerable implications for all employers.

With roughly one quarter of the workforce in the UK being obese, employers are having to manage increased absences and deal with members of their workforce being physically unable to carry out certain tasks. However, arguably the most important consideration for employers is whether obesity is to be considered to be a disability.

The opinion of the Advocate General

The Advocate General has recently issued an opinion on whether obesity is a disability in the case of Karsten Kaltoft v Kommunernes Landsforening.

The Advocate General held that there is no general principle of EU law prohibiting discrimination on the grounds of obesity. However, if the obesity is so severe that it hinders an employee's full and effective participation in professional life, then it may be classed as a disability.

What happens next?

Although not yet binding, if the European Court of Justice follows the Opinion of the Advocate General (which it often does) it appears that the most 'severe, extreme or morbid' obesity is likely to be classed as a disability within the UK Employment Tribunal System.

As a result, employers will have to take steps to avoid discrimination, harassment and victimisation of the most severely obese employees in the workplace. This duty extends to the employer making sure that other employees do not subject them to harassment, perhaps through taunting them or making jokes.

Probably most importantly, employers will also be under a duty to make reasonable adjustments to accommodate any special requirements that arise from an employee's obesity. Such reasonable adjustments could include:

  • Providing larger car parking spaces, which are nearer the entrance
  • Ensuring that employees who are severely obese do not have to carry out activities that are physically demanding
  • Providing wider chairs
  • Supplying healthy meals in the staff canteen

It is important for employers to be aware of this development of law but not to panic, as it is likely that obesity will only qualify as a disability in the most extreme of cases.

In terms of what employers should be doing, it is important for all employers to review their staff handbooks to ensure that their policies and procedures are wide enough to encompass discrimination linked to obesity. If you need any assistance with your staff handbook, please contact Stephen Moore.

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