The Advocate General gave his opinion
today on the issue of obesity and discrimination. Mr Kaltoft had brought his
case following his dismissal from his employment. He claimed he had been
dismissed due to his size and that those who are obese should have the
protection of discrimination legislation.
The AG has stated that there is no
stand-alone prohibition on discrimination on grounds of obesity, HOWEVER,
obesity may amount to a ‘disability’ and be afforded protection as a result.
The opinion states that ‘morbid obesity
may come within the meaning of ‘disability’ if it is of such a degree as to
hinder full participation in professional life’. It goes on to say, ‘even if a
condition does not affect the capacity of that person to carry out the specific
work in question, it can still be a hindrance to full and effective
participation on equal terms with others’.
This is slightly concerning, the AG
appears to be saying that even if someone who is morbidly obese can effectively
do their job, the fact that they may not be able to fully participate must be
addressed. Reasonable measures should then be taken to accommodate the disabled
individual unless the burden on the employer would be disproportionate.
The AG states that obesity must reach a
degree that it plainly hinders participation in professional life, with a BMI
of 40+ (extreme, severe or morbid obesity), where limitations with mobility,
endurance and mood are created.
What does this mean for employers? The
AG’s opinion is usually followed by the judgement, it is not binding until we
have a judgement. However, this is a red flag for employers that a can of worms
is potentially about to be opened. You may have obese employees who are able to
do their job, but cannot fully ‘participate’, this open ended statement could
have limitless possibilities and carry significant implications for adjustments
in the workplace.
The final word from the AG stated the
fact that the disability is self-inflicted is irrelevant and makes the
comparisons with risk taking in traffic and sports and resulting disabilities.
However, no mention is made of the ability to lose weight and therefore become ‘non-disabled’
by reducing BMI.
This opinion, if followed on decision,
could be potentially dangerous, not only for employers’ obligations but also
for public policy, whereby employees become aware that if they increase their
BMI they will be eligible for protections at work.
Elissa Thursfield elissa.thursfield@gamlins.co.uk
