Victoria McMeel follows up on her recent article on obesity and disability, and also looks at a useful case which limits the extent to which employers are expected to make reasonable adjustments to facilitate a return to work for employees on long-term sick leave.

Disability: effects not cause

As I reported last Summer, the Advocate General published an Opinion, in the case of Kaltoft v Kommunernes Landsforening, which set out that severe obesity may result in an employee being classified as disabled for the purposes of EU law. The European Court of Justice (ECJ) has now handed down its decision in Kaltoft v Kommunernes Landsforening and largely followed the Advocate General's view that obesity may have a disabling effect.

By way of background, the claimant, Mr Kaltoft, worked as a childminder, in Denmark, until he was dismissed for redundancy. During his employment, Mr Kaltoft had a BMI of 54, which is classed by the World Health Organisation (WHO) as 'severe, extreme or morbid obesity'. Mr Kaltoft claimed that he was dismissed because of his obesity and brought discrimination proceedings against his former employer. The Danish courts asked the ECJ to clarify

  • whether there was a general principle of EU law which prohibits discrimination on the grounds of obesity; and,
  • if not, whether obesity could be classified as a 'disability' within the scope of the Equal Treatment Directive?

The ECJ decided that

  • there is no general principle of EU law which prohibits discrimination on grounds of obesity;
  • whether obesity amounts to a disability will depend on whether it can be said that an individual is suffering from a long-term limitation which results from physical, mental or psychological impairments which may hinder their full and effective participation in professional life on an equal basis with other workers.

This is not to say that, in order to fall within the scope of EU law, the limitation caused by obesity must prevent equal participation in working life; it will be sufficient for there to be a hindrance to such activity. The key point is that it is the effect of a condition which is important, not its origin. Disagreeing with the Advocate-General, the ECJ said that the obesity need not be severe in order to fall within the definition of 'disability'; each case will depend on its facts.

Under the Equality Act, a person will be defined as 'disabled' if they have a physical or mental impairment which has a substantial and long-term effect on [their] ability to carry out normal day-to-day activities. It will now be for the UK courts and tribunals to interpret our domestic legislation in line with the view of the ECJ. Helpfully, the ECJ's decision in Kaltoft accords with a decision of the Employment Appeal Tribunal in 2013, Walker v Sita Information Networking Computers Limited, which held that obesity does not of itself render the a claimant disabled; but the effects of obesity might make it more likely that a claimant has impairments which come within the definition in the Equality Act 2010 (please see our March 2013 'news round-up' for more information on the Walker decision).

Long-term sick leave and returning to work

In a second case which develops the law relating to disabled employees, earlier this month the Employment Appeal Tribunal (EAT) looked at whether an employer's duty to make reasonable adjustments for a disabled employee was triggered where the employee was on long term sick leave and had not given any indication of a return to work. Was the onus on the employer to offer reasonable adjustments, such as a phased return?

In Doran v Department for Work and Pensions, Miss Doran was employed by the Department for Work and Pensions (DWP) as an administrative officer. In January 2010, she commenced a period of sickness absence due to stress, and asked if a return to work on a part-time basis could be considered. Approximately six weeks into Miss Doran's absence, a part-time arrangement was discussed and then offered, but Miss Doran did not pursue it further or discuss it with DWP again. After a further three months, Miss Doran was dismissed because of her long-term sickness absence. Under the DWP's attendance policy, it was unusual for absences to be supported if there was no indication of a return to work within six months.

Miss Doran brought an employment tribunal claim, alleging that the DWP had failed to make reasonable adjustments, contrary to the (now repealed) Disability Discrimination Act 1995. However, the employment tribunal rejected Miss Doran's claim, on the basis that the DWP's duty to make reasonable adjustments had not been triggered because Miss Doran had not informed it of a return date or given any other sign that she would be returning to work at any particular time.

The tribunal noted that a phased return to work suggested by occupational health could not be implemented until Miss Doran indicated she was going to return to work. In its view, she would not have become fit for work within six months, after which the DWP would normally consider dismissal. There was no known reason to extend this time-frame for Miss Doran.

Miss Doran appealed to the EAT, but the EAT upheld the employment tribunal's findings: the ball had been in Miss Doran's court to raise the issue of a lower grade role with a phased return to work.

This case therefore confirms that, in general, there must some indication of a likely return to work before an employer's duty to make reasonable adjustments, in relation to a return to work, is triggered.

Although this case was decided under the Disability Discrimination Act 1995, which has now been superseded by the Equality Act 2010, the same principles in respect of reasonable adjustments would apply. However, in addition, under the Equality Act 2010, it is likely that an employee in similar circumstances to Miss Doran would also be able to bring claims for 'indirect disability discrimination' and / or 'discrimination arising from disability'. In those circumstances, a defence of objective justification may be open to employers.

The employment team at Bevan Brittan is dealing with similar disability-related issues on a regular basis and we have particular expertise in relation to the specific areas of difficulty which arise in connection with long term sick leave in public service sectors. If you require any assistance in this regard, please do contact me or your usual Bevan Brittan contact.

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