The Equality Act 2010 (EqA 2010) prohibits discrimination in employment in respect of disability. In order to claim disability discrimination, it must be shown that the employee has or had a ‘physical or mental impairment’ that has a ‘substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities’.
Case law suggests that the above definition of disability in the EqA 2010 is in line with EU Law under the Equal Treatment Framework Directive.
According to EU law, ‘disability’ refers to 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 the person concerned in professional life on an equal basis with other workers’ (HK Danmark acting on behalf of Ring v Dansk Almennyttigt Boligselskab and another).
However, although the concept of disability in UK and EU law is similar, one notable difference is that the definition adopted by EU law is based on the effects of the individual’s condition on their ability to participate in ‘professional life’, whereas the UK definition focuses on the effect on ‘normal day-to-day activities’.
UK case law has held that normal day-to-day activities may include work-based activities, but this depends on how specialist they are. EU law is said to be based on a ‘social model’ (looking at barriers in society), whilst UK law is based on a ‘medical model’ (looking at the impairments the individual suffers from).
Is Obesity A Disability?
The European Court of Justice (ECJ) has previously ruled that whilst EU law does not prohibit discrimination on the grounds of obesity, it may be a disability under the Equal Treatment Framework Directive and workers who are able to establish that their obesity qualifies as a disability will be protected against unlawful discrimination (Karsten Kaltoft v Kommunernes Landsforening acting on behalf of the Municipality of Billund).
The ECJ did not limit this possibility to severe or morbid obesity and it ruled that obesity might be a disability where it represents a limitation that hinders an individual’s full and effective participation in professional life on an equal basis with their colleagues.
Further, an individual’s obesity need not make it impossible to carry out certain work – it is sufficient that it makes it more difficult and demanding to carry out the work in question.
Similarly, the UK Employment Appeal Tribunal has previously ruled that an obese claimant, who suffered from a number of physical and mental conditions, was actually disabled (Walker v Sita Information Networking Computing Ltd).
Practical Implications
Employers should assess when the limitations faced by an obese employee reach the stage of having a negative impact on their ability to participate fully and effectively in professional life in the same way as their colleagues. In such cases, the employee’s obesity may be a disability.
Additionally, the duty to make reasonable adjustments would be triggered in relation to an obese worker where their obesity can be classed as a disability.
Obesity Workplace Discrimination: Potential Reform
Leading Employment Judge Philip Rostant has recently published a joint paper with Tamara Hervey, ‘All About that Bass’? Is Non‐Ideal‐Weight Discrimination Unlawful in the UK?’, stating that a change in the law surrounding obesity and discrimination is required, in order to ensure that workplace discrimination against those of ‘non-ideal weight’ is treated as seriously as racism and sexism.
The paper emphasises that those who are obese have greater difficulties getting jobs, are paid less than their thinner colleagues and are at greater risk of dismissal and it calls for a new law that prohibits the use of abusive nicknames in the workplace, such as ‘fatty’, and bans the practice of refusing to employ or promote an individual based on their weight.
It argues that the EqA 2010 provides only limited protection for those of ‘non-ideal weight’ due to the fact that it is based on the medical model of disability, and suggests that a move towards the EU social model approach to disability is needed.
Other academics also claim that because obesity is not explicitly listed as a protected characteristic under the EqA 2010, people believe that weight discrimination is socially acceptable and as such, overweight people are being victimised in the workplace.
Assuming that the UK remains part of the EU after the upcoming Brexit referendum, Rostant and Hervey believe that UK law will have to change and adopt the EU attitude towards disability in accordance with the Equal Treatment Directive.
How Nelsons Can Help
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