In a judgment handed down recently, the Employment Appeal Tribunal (EAT) confirmed how obesity should be treated when considering whether an employee is disabled for the purposes of a disability discrimination claim.
W weighed over 21 stone and suffered from a wide range of symptoms associated with obesity including:
- knee problems;
- high blood pressure;
- chronic fatigue syndrome;
- bowel and stomach problems;
- chemical sensitivity;
- anxiety and depression;
- persistent cough;
- recurrent fungal infections; and
- sacro-iliac joint pains.
That the symptoms and their effects were genuine was not challenged.
By way of a reminder, in order to satisfy an Employment Tribunal (ET) that they have a disability for the purposes of bringing a claim of disability discrimination, a potential claimant must show that they have a physical or mental impairment which has a substantial and long-term adverse effect upon their ability to carry out normal day to day activities. There is available Guidance on matters to be taken into account in determining questions relating to the definition of disability, which specifically states:
"It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded[…] What it is important to consider is the effect of an impairment, not its cause."
The Guidance gives the example of liver disease as a result of alcohol dependency which would count as an impairment although alcoholism itself is expressly excluded from the scope of the definition of disability.
An ET concluded, when W brought a claim of disability discrimination, that W was not disabled because, on the medical evidence, there was no evidence of any physical or mental impairment other than obesity. W lodged an appeal with the EAT.
The EAT held that W was disabled, as he suffered from various physical and mental impairments which were compounded by obesity.
The first question, when approaching the issue of whether or not a potential claimant has a disability for the purposes of bringing a disability discrimination claim, must be whether or not the individual has an impairment at all. Once an impairment has been identified, the second question is whether that impairment is physical or mental. To satisfy the definition, the condition doesn’t need to have a medically-recognised label. The ET had gone wrong as it had sought to establish the cause of W’s impairments, believing that an impairment could only be established if it was caused by something physical or mental.
The EAT went on to say that obesity is not a disability it its own right, although it may make it more likely that someone is disabled because an ET is more likely to conclude that the claimant does suffer from an impairment which has the required adverse effect. Further, it stated that it may be appropriate for an ET to consider whether the impairment will be suffered “long term”, as it may not be in the case of a claimant determined to lose weight who could be predicted to be at a “normal” weight within a year.
In this case, the EAT provides clarification for education institutions on obesity and disability and how the two fit together. It is clear, now, that obesity is not a disability per se, but that any impairments from which an obese person suffers are, in reality, likely to mean that that person will satisfy the definition of disabled within the meaning of the Equality Act 2010.