15 Sep 2014
All employers should be familiar with their heightened legal obligations when managing disabled employees in the work place. However, how easy is it to determine whether an employee is actually disabled? The test is a legal one albeit inextricably linked to medical evidence and fact.
The statutory definition of a disability can be found within the Equality Act 2010 s.6 and includes any physical or mental impairment which has a substantial and long term adverse effect on an employee’s ability to carry out day to day activities. Can obesity, a condition which may well adversely affect someone’s day to day life amount to a disability? Medical Practitioners define obesity as a BMI of over 30. It is common sense that merely being “obese” on this scale is not sufficient to warrant a finding that a person is disabled but what if being overweight does start to impact on an employee’s day to day activities?
In a 2012 UK EAT case (Walker v Sita Information Networking Computing Ltd), the Employment Appeals Tribunal (EAT) overturned the decision of the lower tribunal which had stated that an obese claimant (who did suffer from both mental and physical ailments), could not be considered disabled because the Tribunal could not identify a cause for those impairments. The EAT clarified the position stating that obesity of itself does not render a Claimant disabled but that an impairment linked to the obesity may do so. They further stated that when considering the legal definition of disability, the tribunal could take into account the claimant’s obesity when considering factors such as the likely long term impact of their ailment.
In August of 2014, Advocate General (AG) Jääskinsen commented on a similar Danish case, referred to the European Court of Justice (ECJ). Whilst his comments will be not binding on the ECJ, they typically do tend to follow such guidance.The AG indicated that obesity would not in itself amount to a disability per se but that severe or morbid obesity may fulfil the legal test for a disability under the EU Council Directive 200078EC. The more severe the obesity, the greater the likely impact on the mobility and endurance of the employee.
It is, of course, controversial to deem a condition which may actually be reversible by actions of the employee themselves, a potential disability however in the event that the individual lost sufficient weight, it is logical that they would no longer be deemed disabled.
Whilst there is no general principle of EU or UK law which protects against discrimination on the grounds of obesity employers still need to consider what an employee can or cannot do on a case by case basis.
If you need any advice on this matter please contact David Lewis, Solicitor on 01633 244233 or email firstname.lastname@example.org
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