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Around 25% of UK adults are now classified as obese and this appears to be a worrying trend that is set to increase. How does this impact in the workplace? Recently the European Court of Justice (ECJ) heard a case involving a Danish childminder, Mr Kaltoft, who is 25 stone who claims that he was dismissed because he is obese and that his obesity is a disability.
A person is disabled under the UK’s Equality Act 2010, if they have a physical or mental impairment that has a substantial and long-term negative effect on a person's ability to do normal daily activities. Obesity has never been presented as a disability before by a Claimant. Mr Kaltoft is arguing that discrimination against employees on the grounds of obesity is in breach of discrimination legislation. The ECJ has not reached a decision but it is a landmark test case and, if the ECJ finds in Mr Kaltoft’s favour, it will have far reaching implications for discrimination law providing clarity which could affect many employers.
Although the law does not currently recognise obesity as a disability, it is well established now that physical and mental conditions arising from obesity can be a disability. In Walker v Sita Information Networking Computing Ltd in 2013, the Employment Appeal Tribunal had to determine whether the Employment Tribunal was right to rule that an obese employee was not disabled because there was no identifiable cause for the number of different medical conditions from which he suffered. Mr Walker weighed 21.5 stone and suffered from sixteen medical conditions compounded by obesity. Sita accepted that all of Mr Walker’s symptoms were genuine but argued the disability claim should be rejected because he was not disabled. The Employment Tribunal found that Mr Walker did not come within the definition of having a disability because he could not identify a mental or physical cause for his symptoms.
Mr Walker appealed to the Employment Appeal Tribunal (EAT) and the appeal was upheld. The EAT commented that obesity itself does not make a person disabled but it may depending on the evidence make it more likely for an individual to come within the definition of disability. If obesity is classified as a disability by the ECJ then employers will need to consider the potential impact of their practices or procedures on obese staff to avoid potential discrimination claims. There is an obligation on employers to make reasonable adjustments to accommodate a person’s disability. As a consequence, employers would have to consider adjustments such as providing parking spaces closer to the workplace, providing a special desk and/or chairs or providing duties with reduced walking or travelling time. There could also be an increase in flexible working requests for obese staff whose mobility is impaired to such an extent that travel and in particular commuting is problematic. The ECJ decision therefore is an important one which could have a significant impact for employers and employees.
The status of employment rights on the transfer of an undertaking is an extremely complex area of...