Decision: The ECJ have confirmed the Advocate General’s decision that although there is no general prohibition against discrimination on the grounds of obesity, such a condition may fall within the scope of the Equal Treatment Framework Directive (2000/78/ EC). This thinking mirrors the decision of the English courts in the case of Walker v SITA Information Networking Computing Ltd UKEAT/0097/12 which held that obesity as a condition itself did not render an individual disabled under the Equality Act 2010, but the effects of obesity may increase the chances of a tribunal finding that a Claimant was disabled.
The ECJ Judgment emphasised that it was irrelevant that a person may have caused their disability in this context.
Impact: The focus is very much on the effect of the condition. Medical evidence will remain key in deter- mining the length of the impairment and whether it will have a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. This will help an employer to decide whether the employee is disabled within the meaning of s6 of the Equality Act 2010 and, if so, to decide what reasonable adjustments it should make.
Employers are going to need to think carefully about what actions will be viewed as reasonable adjustments by the Tribunal. This case indicates that because an individual who is obese may be viewed as disabled, the employer must recognise that there may be an adverse impact on the employee in relation to their work activities, by reason of disability. However, there are likely to be some tricky questions as part of this exercise, such as the extent of an employer’s duty to make reasonable adjustments when the condition is, in fact, caused by or contributed to by the Claimant. It is clear that even if an individual was able to control their obesity, they could still be disabled for so long as they remain obese, suffering the same level of adverse impact on their normal day-to-day activities. If an individual could alleviate some or all of the detrimental effects caused by the obesity by their own actions, should an employer take that into account in deciding what reasonable adjustments it is required to make? This is a difficult area, and there is no substitute for obtaining informed medical advice before the employer acts.
Kaltoft v Munipicality of Billund C-354/13