Introduction – The Equality Act 2010 and Protected Characteristics

Under the Equality Act 2010, it is unlawful for employers to discriminate against employees on the grounds of age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage/civil partnership or pregnancy/maternity.

These are all called “protected characteristics” and discrimination is automatically unfair and exempt from the need for 2 years of service.

Obesity is not a protected characteristic by itself.  However a recent ruling from the Advocate General of the Court of Justice of the European Union (“CJEU”) found that it is possible for obesity to be a disability.

When does Obesity become a disability?

The Advocate General started by explaining that the EU definition of disability covers the situation where a physical or mental condition makes “carrying out of that job or participation in professional life objectively more difficult and demanding.  Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing.”

He continued that in “cases where the condition of obesity has reached a degree that it….plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability.”

Now, this isn’t black and white – note that he said “can be considered”, not “must be considered”, but there will be circumstances where an employee is sufficiently obese that it interferes with their job enough to be classed as a disability.

Because this is open to interpretation, a Tribunal would have to look at the particular facts of a case and make a decision whether the employee was disabled.  Helpfully, the Advocate General gave some guidance by proposing that only “severe obesity” – defined as a Body Mass Index of over 40 – can count as a disability which rules out the majority of the working population.

What are the consequences for employers?

If an employee is sufficiently obese and their job is sufficiently affected that they are likely to be classed as disabled, then an employer has a duty to make reasonable adjustments to compensate.

Reasonable adjustments might include:
– duties that involve less physical activity
– removing the use of stairs where possible
– bigger chairs and desks
– car parking closer to the office

Where can you go for help and advice?

If you are an employer who is affected by this issue and needs advice, or an employee who feels that they fall within the new guidance, then please don’t hesitate to contact us today for a free 30 minute consultation to find out more.  One of our expert employment solicitors will be happy to help.

Tel: 01245 893400

Or use the Enquiry Form on our Contact Backhouse page.

The Backhouse Solicitors Employment Law Team