Two recent cases will be of interest to employers in the context of potential discrimination claims, one on the grounds of religion and the second on whether obesity is a disability.
Proselytising in the workplace
In McAteer v South Tipperary County Council (2014), the employee was an Evangelical Christian. He often spoke about his faith with his co-workers and complaints were raised. He was asked to desist from sharing his faith during the course of the working day, including during his break. The employee undertook to desist but failed to do so and was ultimately called to a disciplinary meeting and received a written warning. After further faith sharing incidents with members of the public, he respectively received a final written warning, suspension and dismissal.
The Equality Officer (“EO”) found that the manifestation of religious beliefs is covered by the Employment Equality Acts. The EO also confirmed that staff were asked to monitor the employee and his interactions and this amounted to less favourable treatment based on religion. The EO was also satisfied that the ban on faith sharing disproportionately impacted on persons of the Evangelical Christian faith and this was not objectively justified, particularly because there was no evidence of how the Council was brought into disrepute. The employee was awarded €70,000.
Is obesity a disability?
In the Kaltoft case (2014), the employee was a child-minder for a municipal authority in Denmark. During his 15 years of employment, the employee was obese (as defined by the WHO). His employer provided financial assistance in order for him to attend fitness sessions but the employer subsequently observed that Mr. Kaltoft’s weight remained unchanged. Due to restructuring, the municipal authority was requested to nominate a child-minder for dismissal and the employee, Mr. Kaltoft was chosen. When Mr. Kaltoft asked for reasons for his dismissal during meetings, obesity was mentioned as a factor.
The employee took a claim in the Danish Courts which referred a question to the EU Court as to whether obesity could be deemed to be a “disability” under EU law. The EU Court noted that although obesity does not of itself constitute a “disability”, that the condition may fall within the concept of “disability” and attract protection against discrimination. Reduced mobility was given as an example of this.
The above cases are thought provoking. However, they reconfirm that employers need to be proportionate with disciplinary sanctions and objective with selection criteria.