The European Court (CJEU) has ruled that, although there is no general principle of EU law prohibiting, in itself, discrimination on grounds of obesity, that condition may fall within the concept of ‘disability’ and thereby attract protection against discrimination under the Equal Treatment Framework Directive. It will only do so, however, where the usual criteria for establishing a disability are satisfied, including being such that the obesity hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.
Relevance for UK employers
The principles of the Directive have been incorporated into UK legislation through the Equality Act 2010 (EqA), which protects against direct and indirect discrimination because of disability and also discrimination arising from disability. In addition, employers are under a duty to make reasonable adjustments to an individual’s work or working arrangements in order to counter the effects of disability.
The EqA sets out various identifying criteria of disability in terms of the nature, effect and duration of a relevant “impairment”. What today’s decision confirms is that it may not be necessary for an obese employee to point to some other related medical condition (such as diabetes or arthritis) before they can be categorised as a disabled person. For example, if obesity, in itself, causes reduced mobility, that may be sufficient to constitute a disability.
Employers should therefore remain alert to employee health and workplace obstacles (including to those who are obese) considering questions such as:
- Is an employee exhibiting signs of struggling at work or have they mentioned doing so? Before considering performance management, consider possible reasons, such as disability.
- Has an employee had a period or periods of sick leave? It is good practice to hold return to work interviews, to make further enquiry.
- Has an employee requested adjustments to their work or working environment or are you aware of any such needs? The law will penalise employers who fail to be accommodating towards employees with a disability they ought reasonably to know about.
- If making decisions about dismissal or redundancy, might the organisation’s standard practice or procedure disadvantage those with disability?