The issue before the European Court (CJEU) which has sparked particular interest is whether EU law protects workers against discrimination on grounds of obesity. Today, the CJEU has endorsed the Advocate-General’s view that there is no general principal of EU law protecting against such discrimination; however, the CJEU has confirmed that, if obesity results in a limitation which hinders the individual’s participation in professional life, then obesity can fall within the concept of disability and thereby attract protection against disability discrimination.
Naeema Choudry of Eversheds LLP comments:
Today’s decision clarifies that, under the European Equal Treatment Framework Directive, obesity is not always a disability per se, but it is a condition which can give rise to discrimination protection.
Each case must be looked at on its own merits to determine the presence of long term mental or physical impairments. Whilst obesity is likely to increase exposure to such impediments, therefore, the effect of individual obesity is the critical question, not the degree of obesity.
To minimise risk of discrimination, UK employers should remain alert to employee health and workplace obstacles considering questions such as:
- Is an employee exhibiting signs of struggling at work or have they mentioned doing so? Before considering performance management, consider possible reasons, such as disability.
- Has an employee had a period or periods of sick leave? It is good practice to hold return to work interviews, to make further enquiry.
- Has an employee requested adjustments to their work or working environment or are you aware of any such needs? The law will penalise employers who fail to be accommodating towards employees with a disability they ought reasonably to know about.
- If making decisions about dismissal or redundancy, might the organisation’s standard practice or procedure disadvantage those with disability?