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11-02-2019

A number of reports and recent cases have suggested that there is still prejudice against obese people in the workplace. Fatter people are sometimes not seen as leaders and less productive. Why does the law view issues of weight differently to other areas of discrimination?

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Really? Can you imagine the outcry if it were suggested that women were generally less capable than men or that certain racial groups were not suited to particular types of work?

Certainly, from personal experience, people seem to think it perfectly acceptable to point out that you have put on weight/lost weight etc without so much as batting an eyelid.

So why do we view issues of weight differently to other areas of discrimination?

Taking an entirely legalistic view, just being fat is not seen as a 'protected characteristic' for the purposes of Equality Legislation in the same way that race, sex or sexual orientation are. Further, obesity is not in and of itself a disability - although being overweight may make it more likely that an individual suffers from a disability, e.g. diabetes.

In Walker v Sita Information Networking Computing Ltd, C weighed 137kg and suffered from a wide range of symptoms associated with obesity including joint pain and difficulty walking. The employment tribunal concluded that he was not disabled on the basis that medical evidence said that there was no cause to the physical or mental symptoms other than obesity. C appealed. On appeal, it was held that the real issue was whether or not C had a physical or mental impairment. The cause of the impairment is only relevant in so far as the tribunal may find that a person does not have a disability because it has no recognised cause.

So whilst the Employment Appeal tribunal did not say "Fat = disability", it did say that obesity may make it more likely that an individual is disabled. C's appeal was therefore allowed.

In the Danish case of FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13. The Danish Court asked the EUCJ to specify:

  1. Whether or not EU law itself prohibits discrimination on the grounds of obesity and 
  2. Whether or not obesity could constitute a disability

The “Employment Equality Directive” establishes a general framework for equal treatment in employment and is binding on all member states including the UK. It covers matters such as sex, religion, disability, but doesn’t specifically cover obesity.

The particular case concerned Mr Kaltoft who had worked for a nursery for 15 years and who was dismissed on the grounds of redundancy. Mr Kaltoft, who reportedly weighed 25 stone and satisfied the WHO definition of obesity, argued that his selection for redundancy was due to his weight.

The EUCJ stated that the general principle of non discrimination was a fundamental right integral to the general principles of EU law but that no treaty prohibited discrimination on the grounds of obesity as such. Nevertheless, the definition of ‘disability’ included a long term physical, mental or psychological impairment which may hinder an individual’s full and effective participation in professional life on an equal basis with others.

Therefore, if a person’s obesity is such so as to place limitations on their participation at work, it may amount to a disability.  Furthermore, the fact that an employer may have made adjustments to allow participation at work did not mean that the person was not disabled.

The case was then referred back to the Danish Court to determine if Mr Kaltoft’s particular obesity fell within the definition of disability taking the above into account.

The decision in Karsten Kaltof is binding on all member states and is seen as controversial in some quarters because some individuals regard obesity as a life choice rather than an illness. However the Advocate General has been keen to point out that it will not matter whether the obesity is caused by an underlying medical condition or simply the over-consumption of food. The crucial issue is whether or not the employee is, in fact, suffering from a long term impairment.

Sarah Rushton
E-mail: srushton@moonbeever.com
Tel: 0207 539 4147

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