Is obesity a disability?
For the first time the European Court of Justice has considered issues concerning obesity-based discrimination. In this article we look at whether or not obesity could be deemed a disability under UK law. We also touch on the larger picture for employers; what impact is obesity having on the UK workforce and how are employers reacting to that?
About a quarter of the adult population in the UK is clinically obese and this is set to rise according to NHS statistics. With these figures, this is undoubtedly a subject that will increasingly raise its head in the UK workplace. The imminent question for employers and employees alike is whether or not the UK is going to follow in the footsteps of the US when it comes to offering employees protection under disability legislation. Workers in the US are protected under disability law if they weigh twice as much or 100 pounds less than their optimal weight.
In July this year the Advocate General issued his opinion that extreme, severe or morbid obesity could fall within the definition of disability under the Equal Treatment Framework Directive even though there is no specific prohibition against discrimination on the grounds of disability.
The Advocate General considered that severe obesity could be a disability covered by the protection in the Directive if it hinders full and effective participation of the person concerned in professional life on an equal basis with other workers.
Under UK law a similar conclusion was reached by the Employment Appeal Tribunal (EAT) last year in the case of Walker v Sita which found that obesity in itself was not a disability on its own. But it did consider that an obese person may be more likely to come under the definition of a disability for the purpose of the Equality Act 2010.
Under the Act, a person is considered to have a disability if he or she has a physical or mental impairment and it has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. So for example, diabetes, depression and joint-pain – all associated with and potentially compounded by obesity – may be chronic impairments that have a substantial effect on an individual’s everyday life.
In the case of Walker v Sita, the claimant had sixteen medical conditions compounded by obesity, but with no single recognisable cause. The EAT pointed out that the test for disability was not necessarily about causes, but primarily about whether or not there was an impairment and the nature of that impairment. On that basis, they overruled the tribunal and concluded that the claimant was disabled.
It follows that the effects of severe obesity should now be considered as potentially rendering an employee disabled for the purposes of the Equality Act 2010 and the Equal Treatment Framework Directive.
If faced with such a situation an employer will need to establish whether there are any reasonable adjustments that might help a disabled employee to do their job or avoid workplace disadvantages. This could include for example the provision accessible car parking, larger desks and chairs and duties requiring reduced mobility.
The Bigger Picture
Despite the potential disability implications, it is prudent for employers to be giving thought more generally to obesity within the workplace. Research suggests the cost of obesity entails increases in short- and long-term sickness expenses, increased absenteeism, and lower productivity.
Again looking to America, who seem to have been forced to deal with this issue sooner than us, what are employers doing there?
The majority of larger employers in the US already offer on-site exercise facilities, nutritional counselling and health coaching programs, health risk assessments, healthy snacks in vending machines, discounts or waived fees for gym memberships and nutritional information in employee cafeterias.
Whilst in the US many large employers seem to accept the workplace as an appropriate venue for addressing overweight and obesity, the same can’t yet be said for the UK. Despite this many large employers in the UK have made the leap connecting concerns about productivity, absenteeism, and rising sickness costs with managing their employees’ weight and have taken appropriate steps. This is an area where smaller employers might now want to consider following suit in future.