Catering Scotland

With the European Court of Justice (ECJ) ruling earlier this year that obese workers may be able to bring claims under existing disability discrimination legislation, the myriad pitfalls could have a direct impact on employers. 

As the level of obesity continues to reach new heights, Alan Delaney explores the potential implications for employers…

Why has obesity been in the headlines?

With some forecasts suggesting the economic cost of Scotland’s obesity epidemic could reach £4.6bn, the issue remains at the forefront of the wellbeing debate.

What were the facts of the ECJ case?

The European Court of Justice claim involved Karsten Kaltoft, a childminder in Denmark, who was dismissed on grounds of redundancy after 15 years’ service. Weighing in at over 25 stone, throughout his employment he had been classified as obese, according to World Health Organisation standards.

He argued he had been unlawfully discriminated against due to his obesity, which reportedly had been referred to during his dismissal process, although the context was disputed.

The Danish national court made a reference to the European Court of Justice (ECJ), asking whether obesity could be protected under EU discrimination law or, alternatively, covered by existing disability discrimination provisions.

What was the outcome?

The ECJ ruled that there was no freestanding protection for obese workers under EU legislation. However, it ruled that obesity could, potentially, amount to a disability if the relevant test for disability was met. This would be where obesity hindered an individual’s full and effective participation in professional life on an equal basis, for example, due to reduced mobility or the onset of medical conditions which prevented them from or caused discomfort when carrying out their work. It was left for the Danish courts to consider whether Mr Kaltoft was in fact disabled.

What impact does this have on UK law?

As UK courts and tribunals must interpret UK discrimination law consistently with EU law, the decision is important for employers, who will now have to consider whether obese workers might satisfy the test for ‘disability’ under the Equality Act 2010. This is defined as ‘a physical or mental impairment which has a long-term substantial adverse effect on normal day-to-day activities’.

Employers are likely to look to GPs and occupational health advisers to provide guidance on whether or not disability status is met.

What duties might arise for UK employers?

Where obese workers are considered to be disabled, employers will be under a duty not to treat them less favourably, because of or for a reason arising from their disability. Additionally, employers will also need to make reasonable adjustments where such workers might be placed at a disadvantage in the workplace. Importantly, an employer could also be liable for obese employees harassed at work by colleagues due to their condition, unless they could show they had taken all reasonable steps to prevent such harassment.

What steps can employers take to minimise risks?

Employers should review their equal opportunities policies, to ensure these are up to date.

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Alan Delaney is an employment lawyer with Maclay Murray & Spens LLP and a member of the firm’s Food and Drink team.