Obesity discrimination? Fat chance…

It will not come as a surprise to many employment lawyers to discover that the European Court (CJEU) has ruled that, whilst there is no express EU principle prohibiting “obesity discrimination”, that condition may fall within the framework of “disability”.  As such, the protection of the Equality Act 2010 may be available for some obese employees.

What are the facts of this case?

A Danish employee with 15 years’ service brought a discrimination claim against his employers after he lost his job.  He weighed 25 stone and claimed that the reason for his dismissal was related to his size.  The Danish court referred this matter to the European Court to clarify firstly whether obesity could be deemed to be a disability under the discrimination legislation and secondly how to determine if an obese person is protected against discrimination.

What was the European Court’s finding?

The court stated that “under given circumstances, the obesity of the worker entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, such obesity can fall within the concept of disability within the meaning of the directive.”  The case has been referred back to the Danish courts for them to determine whether or not the worker is sufficiently obese that he qualifies as having an impairment.

What does this mean?

There has been widespread panic amongst employers that this will result in every obese worker being protected by discrimination legislation.  That is not strictly the case.  The question as to whether or not someone is disabled will very much be a question of fact.  That worker will require to demonstrate that the degree of their obesity is such that it has a long-term, adverse impact on their day-to-day activities.  Furthermore the burden of proof will remain on the claimant at tribunal to demonstrate that they are entitled to the protection of the legislation.

What does this mean for employers?

Employers should not panic.  Many employers are speculating that they will no longer be able to dismiss overweight employees for fear that they will face an employment tribunal claim.  This is not correct.  Not every obese employee will be classified as disabled under the legislation.  The European Court suggests that each case will be fact specific.

Furthermore, provided that the reason for dismissal is not discriminatory (i.e. not because of the worker’s obesity), the employer can still persuade a tribunal that any dismissal is fair.

It may be that, in extreme cases, employers may wish to take advice regarding making reasonable adjustments for obese employees.  However provided that employers are effectively managing their staff on a regular basis, any problems relating to overweight employees should be limited.

Simon Allison
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

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