Health and Social Care Update - October 2018
Oct 17 2018
Policy and law relevant to those involved in health and social care work.Read More
Does EU law protect obese employees from discrimination? Victoria McMeel reports on a recent Opinion provided by the Advocate General which confirms that the effects of severe obesity may mean that disability legislation comes into play.
The Equal Treatment Framework Directive (2000/78/EC) (the 'Directive') provides a legal framework for protection against discrimination in employment on a number of grounds, including disability. The Equality Act 2010 (EqA 2010) is the UK legislation that protects against discrimination, and must be interpreted in a way that complies with the Directive.
Although the Directive doesn't actually define "disability", European case law has established that disability can be defined as
"a limitation which results from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person in professional life on an equal basis with other workers"
As we previously reported the Employment Appeal Tribunal clarified in Walker v Sita Information Network Computing that an obese employee may have impairments within the legal meaning of disability.
In the recent case of Kaltoft v Municipality of Billund the Advocate General was asked to give his Opinion on a number of similar issues.
Mr Kaltoft worked as a childminder for the Municipality of Billund in Denmark for 15 years. He was dismissed in November 2010. The decision to dismiss was made following a "specific assessment on the basis of a decline in the number of children".
At the relevant time, Mr Kaltoft weighed over 160 kilograms (25st) with a Body Mass Index ("BMI") of 54 which is classified as class III obesity or severe, extreme or morbid obesity under World Health Organisation classification.
The Municipality of Billund stated redundancy as their reason to dismiss. Despite this, Mr Kaltoft brought proceedings in a Danish District Court claiming that he had been dismissed because of his obesity and that this amounted to discrimination on the grounds of disability.
The Court referred the following questions to the European Court of Justice ("ECJ") for clarification.
The Advocate General concluded that EU law does not provide a stand-alone provision prohibiting employers from discriminating on the grounds of obesity.
The Advocate General's opinion is that if the effect of an employee's obesity hinders their full and effective participation in professional life on an equal basis with other workers, it can fall within the definition of disability.
According to the Advocate General, to satisfy the definition of disability, a person's obesity must be sufficiently severe. Mere "obesity", on its own, is not enough to qualify as a disability. The Advocate General suggested that "most probably" only class III obesity would lead to the type of limitations that could amount to disability under the Directive.
Interestingly, the Advocate General also stated that it would run counter to the Directive if a distinction was drawn between the different ways in which obesity can occur. It is therefore irrelevant whether a person is obese due to excessive food consumption or some other psychological or metabolic condition.
Although not yet binding, if the ECJ follows the Opinion of the Advocate General (which it often does) it appears that 'severe, extreme or morbid' obesity is likely to be classed as a disability. Their decision is likely to be published in the next few months. Assuming the Advocate General's Opinion is followed, this interpretation of the Directive will be binding in the UK, as the UK courts will have to interpret the EqA in line with ECJ case law.
Employers will, therefore, have to take steps to avoid discrimination, harassment and victimisation of extremely obese employees in the workplace. This includes making sure that other employees do not subject them to harassment.
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
Although this development may be concerning for employers, it is important to focus on what this means in practice. Although direct disability discrimination will be covered, it is likely that most cases of this nature will be concerned with discrimination 'arising from' disability and failure to make reasonable adjustments. In both of these instances, the employer has the chance to justify their actions. Whilst this decision may increase the scope of discrimination legislation, it will not force employers to go to disproportionate lengths to accommodate the needs of an obese employee; neither does this decision apply to employees who are simply overweight, rather than severely obese.
European and domestic case law is focusing on the extent to which an employee's weight impacts on their ability to engage in normal activities – the fact that any restriction on that ability is caused by weight does not preclude equalities legislation from applying. Accordingly, it may be that your current policies and procedures are sufficiently widely drafted to encompass any discrimination linked to obesity, but you may wish to undertake a review in the light of this latest development, to ensure that you are covered. Please do contact me or another member of the Bevan Brittan Employment team if you would like us to assist with this process.