13 Feb 2015

Employment

UK ET Make First Finding of Disability Protection For Obese Worker

In the Autumn, we commented on the opinion of Advocate General Jääskinsenn in the build up to the ruling of the European Court of Justice in the Danish case of Karsten Kaltoft, a 25 stone child minder allegedly dismissed because of his obesity.

The ECJ ruled in Mr Kaltoft’s favour in Decmeber 2014, stating that whilst obesity in itself was not a disability, if a long term impairment stemmed from that obesity, the employee will have the protection of legislation prohibiting disability discrimination. The court further stated that if obesity could “hinder the full and effective participation of that person in profession life….” then it could amount to a disability.

The principles of the Kaltoft case have now been applied for the first time in the UK by the  Northern Ireland Employment Tribunal in the case of Bickerstaff v Butcher. .

The Claimant, Mr Bickerstaff, worked at Randox Laboratories in County Antrim, where he claims he was harassed by colleagues because of his weight, in particular, by the Respondent, Mr Butcher.  Under the Equality Act, any unwanted conduct that has the purpose of affecting or violating a person’s dignity or creating an offensive, intimidating or hostile environment, may amount to harassment under the Equality Act where it relates to any of the protected characteristics, which includes disability.

In the case of Mr Bickerstaff, the Tribunal were satisfied that some particularly nasty comments made by the Respondent, including that he was “so fat he would hardly feel a knife being stuck into him” constituted a violation of his dignity and created an offensive environment.

The Employment Judge further stated that it was satisfied that Mr Bickerstaff had been “harassed for a reason which related to his disability, namely his morbid obesity condition”.  The Tribunal heard evidence that Mr Bickerstaff had a body mass index of 48.5, sleep apnoea and gout (the latter of which linked to his weight).

It is interesting that this particular case was against Mr Butcher as an individual, rather than Randox Laboratories.  Randox were quick to point out in media reports that upon being made aware of the difficulties between Mr Bickerstaff and Mr Butcher, they took robust steps to investigate the matter and ultimately dismissed Mr Butcher for his behaviour.

Businesses should monitor any potential bullying in the workplace, and remember that they can be held vicariously liable for the actions of their staff in certain circumstances and where they cannot show that they took steps to prevent the acts continuing once aware. Now that employees have protection under the Equality Act against such unpleasant behaviour, what once may have resulted in a constructive dismissal action or a civil claim for work stresses may now amount to a discrimination claim in the Tribunal, opening up new avenues of damages.

The best response to this is to educate staff, create and implement clear and unequivocal policies on expected behaviour and to take any allegations of such behaviour seriously.

For further information please contact David Lewis on 01633 244233 or email lewisd@hevans.com

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