Further to our briefing of 18 December 2014, in which we reported on the European Court of Justice’s ruling that obesity can constitute a disability, a Northern Ireland industrial tribunal has now applied the decision in the case of Bickerstaff v Butcher [2015] 92/14 FET and upheld a claim for harassment by an obese employee.

Facts

Mr Bickerstaff worked at Randox Laboratories where he said he was harassed by a number of colleagues, in particular Mr Butcher, because of his weight.  He claimed that Mr Butcher harassed him on an almost daily basis.  Mr Butcher apparently said Mr Bickerstaff was "so fat he could hardly walk" and he was "so fat he would hardly feel a knife being stuck into him".

Mr Butcher was summarily dismissed after Mr Bickerstaff raised a grievance about his treatment.

Mr Bickerstaff brought claims for disability discrimination against Randox Laboratories and a number of colleagues.  The claims against the company and all but one of the individuals were settled.  Mr Bickerstaff’s claim against Mr Butcher proceeded to a tribunal hearing.

Tribunal’s decision

The Northern Ireland industrial tribunal had to consider whether or not Mr Bickerstaff's condition constituted a disability. The tribunal accepted that his gout, which was linked to his diet and weight problems and led to knee, joint and back pains, was a disability.  The tribunal then went on to consider whether or not his obesity was, by itself, also sufficient to make him disabled.

The tribunal noted that Mr Bickerstaff had a Body Mass Index of 48.5.  The medical evidence showed that these conditions, as well as other health problems, including sleep apnoea, frequent tiredness and loss of concentration were directly linked to Mr Bickerstaff’s weight.  The medical evidence also reported on Mr Bickerstaff’s "shortness of breath on minimal exertion" and his occasional need to use crutches to help with mobility.  The medical opinion was that Mr Bickerstaff’s morbid obesity could end after around six months, provided he lost weight at the rate of one to two pounds per week.  However, there was no evidence to conclude that this was likely to be the case.

The tribunal applied the ECJ decision in FOA acting on behalf of Karsten Kaltoft v Billund Kommune [2015] IRLR 146 ECJ, in which it was held that the Equal Treatment Directive must be interpreted as meaning that the obesity of a worker can constitute a disability if it hinders full and effective participation at work, and was satisfied that Mr Bickerstaff was disabled by a combination of his morbid obesity and gout conditions and by each condition separately.

The tribunal went on to uphold Mr Bickerstaff's claim of disability harassment, stating that it was satisfied the Mr Bickerstaff had been “harassed for a reason which related to his disability, namely his morbid obesity condition”.

Comments

It appeared to make no difference to the tribunal that Mr Bickerstaff's condition was self-inflicted and his health would have improved if he had lost weight: the important issue for the tribunal was the impact of the condition on him, not its cause.

Employers need to be aware that inappropriate comments from colleagues about an individual’s obesity (whether verbal or through social media) may constitute disability harassment.  Employers can be vicariously liable for such comments, which can lead to tribunal claims and compensation for injury to feelings.