A recent European Court decision has paved the way for obese workers in the UK to be protected by the Equality Act.

Whilst obesity itself is not a protected characteristic, if an employee is able to establish that the effects of obesity qualifies as a “disability” they will be protected from unlawful discrimination and an employer will have to make reasonable adjustments to enable the employee to carry out their role.

In the case of Karsten Kaltoft v Municipality of Billund, Mr Kaltoft claimed that he had been discriminated against on the grounds of his obesity. It was recognised that Mr Kaltoft was obese according to the standards set by the World Health Organization.

He had worked for the Municipality of Billund in Denmark as a child-minder for 15 years before he was dismissed by reason of redundancy following a downturn in work. Mr Kaltoft was selected for redundancy over his colleagues and the Municipality had not explained why he had been selected. His obesity had been mentioned during the dismissal process, but there was no reference to this within the dismissal letter.

The European Court decided that obesity was not in itself a protected characteristic, similar to age, race, sexual orientation, sex, disability etc. However, the effects of a particular individual’s obesity may, in certain circumstances, result in an individual falling within the definition of “disability” for the purposes of European law and therefore entitled to protection against discrimination.

In order to fall within the definition of “disability”, a condition must be:

• A physical or impairment;
• Be long-term or likely to re-occur; and
• Have an adverse effect on an individual’s day to day activities.

When considering this definition, the European Court concluded that an employee’s obesity could fall within the definition of disability if it prevents an employee working on an equal basis to his colleagues or if to do so would cause the employee discomfort. This was the case even if the employee had been responsible for the onset of the obesity themselves.

This means that an obese employee may be considered disabled if their obesity makes it difficult for them to carry out their duties e.g. it affects their mobility or if carrying out their duties makes them uncomfortable.

What are the implication of this decision?

An obese employee may therefore be protected from discrimination and should not be treated less favourably as a result. This also applies to job applicants.

When faced with an obese worker, an employer should assess whether their condition is preventing them from carrying out their role or if they are in discomfort doing so.

As such, if there are any performance concerns or periods of long term sickness, we advise that you obtain an occupational health report as soon it becomes clear that there is an issue. This will highlight any issues an individual may have carrying out their role or suffering discomfort as a result. An obese employee may have medical conditions caused by their obesity in any event.

You will then be in a position to determine whether there are any reasonable adjustments you should make to alter their duties to remove any discomfort. This may involve allowing additional breaks or changing the office furniture to allow the employee to sit comfortably.

If you would like to discuss the implications of this decision further please contact a member of the Employment Team.