Background

In Walker v Sita Information Networking Computing Ltd, the EAT considered whether an obese employee, who suffered from a variety of physical and mental conditions, was disabled for the purposes of disability discrimination protection. A person has a disability for discrimination purposes if they have a "physical or mental impairment which has a substantial and long-term effect on [their] ability to carry out normal day-to-day activities".

Unlike the employment tribunal, which had wrongly focused on the cause of the claimant's impairments, the EAT concluded that, in light of the effect of those impairments, the claimant was disabled.

The EAT stressed that obesity is not in itself an impairment for disability discrimination purposes. However, obesity might make it more likely that a claimant has impairments which may fall within the meaning of the legislation.

Facts

Mr Walker suffered from "functional overlay" compounded by his obesity. He had numerous physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression), which caused him difficulty in his day-to-day life. He brought a disability discrimination claim against his employer, but an employment judge found that he was not "disabled". In doing so, he noted that an occupational health specialist had decided that a significant part of Mr Walker's symptoms was played by "a functional/behavioural component", and had not been able to identify a "physical or organic cause" for his conditions other than his obesity (which in itself is not a disability).  Mr Walker appealed to the EAT.

Decision

The EAT allowed Mr Walker's appeal stating that the judge had been wrong to focus on the fact that the medical evidence could not identify a physical or mental cause for Mr Walker's conditions. It was held that:

  • When considering whether an individual is disabled, a tribunal must concentrate on whether they have a physical or mental impairment. Plainly, Mr Walker had been substantially affected by both physical and mental impairments for a long time, and this was the only conclusion available to the judge.
  • The judge had noted that there was no suggestion of a mental illness causing Mr Walker's "functional overlay". However, the proper question was whether Mr Walker had a physical or mental impairment. The disability discrimination legislation does not require a judge to focus on the cause of such impairment.
  • The fact that a claimant's impairment may lack an apparent cause is an evidential issue rather than a legal one. If there is no evident cause of a supposed impairment, it is open to a tribunal to conclude that the claimant does not suffer from it. In the present case, there was no challenge to Mr Walker's account of what he suffered from.
  • Obesity does not of itself render a claimant disabled. However, it might make it more likely that they are. On an evidential basis, a tribunal might conclude more readily that an obese claimant suffers from an impairment or a condition such as diabetes. Further, the obesity might affect the length of time for which the impairment is likely to last (with regard to whether the impairment has a "long-term effect"). The EAT made the point that, where an obese individual is determined to lose weight, and a tribunal could conclude that they will reduce their weight to normal levels within a year, this might mean that impairments connected with the obesity might not be considered "long-term" for discrimination purposes.

Conclusion

It is plain that it is the impairment itself that should be considered rather than its cause. As the EAT pointed out, this is so even if the cause of the impairment is a condition which is excluded from the definition of disability. An example is liver disease caused by alcohol dependency: alcoholism cannot a disability under discrimination law, but the liver disease would qualify as an impairment.

The EAT's judgment in the above case clarifies that obesity is not an impairment in and of itself. Nevertheless, the EAT commented that if a claimant is obese, it is possible that a tribunal will more readily conclude that they suffer from qualifying impairments. In this case, the claimant's list of conditions was extensive and evidently he was disabled under discrimination law.

The EAT’s judgment also indicated that it may be relevant to assess the length of time any impairment might last; giving the example above of someone who was obese but was likely to succeed in losing weight. In that case, if the impairments are unlikely to last longer than 12 months, they would not be disabled.

However, the EAT stressed that a Tribunal should not overlook the effects of an impairment because they cannot identify a precise cause.

What does this decision mean for employers?

There are a number of key points employers can take from this case:

  1. The fact that an employee is obese doesn't necessarily mean that they are disabled. However, it may make it more likely that a Tribunal would ultimately conclude that they have an impairment, and would therefore be considered to be disabled.
  2. Exercise caution before giving frank advice to employees about their appearance. However well-intentioned, you may be inviting a discrimination claim.
  3. Consider whether the employee may have a disability, which triggers the duty to make reasonable adjustments.
  4. An employee’s consent should normally be obtained before revealing their weight to third parties, as it constitutes sensitive personal information under the Data Protection Act 1998.