Tag Archive: disability

Obesity can be a disability, ECJ confirms

Ben Gorner, a Partner in our Birmingham office, comments: As we reported in Be Aware on 1 July and 18 July, the ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) allegedly because the employer thought that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.

Today the ECJ handed down its judgment and confirmed that, whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, obesity can be a disability covered by the protection against disability discrimination. This will be the case if the obesity entails a long term limitation which results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder full and effective participation of the person concerned in professional life on an equal basis with other workers. Such would be the case, in particular, if the obesity of the worker hindered participation in professional life due to reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.

It is for the national court to determine whether a particular claimant’s obesity falls within the definition of ‘disability’. The ECJ specifically did not adopt the threshold indicated by the Advocate General’s opinion of ‘severe’ obesity, which refers to morbid obesity, meaning a BMI of 40 or more (around 21 stone for an average height man). This must be the correct approach, since what is relevant is not the employee’s weight as such but the impact it has on their day-to-day activities, but it will raise familiar issues for employers determining whether particular employees are disabled or not.

The ECJ’s decision will have implications for both employers and service providers particularly in relation to the duty to make reasonable adjustments.  The decision does not, in fact, substantially increase the ambit of discrimination law in the UK. The Equality Act 2010 has already been interpreted as protecting employees who suffer from physical and mental conditions which result from obesity (in the 2012 EAT case Walker v Sita Information Networking Computing Ltd), but as in the ECJ, obesity has been rejected as a disability in its own right by the UK courts. However, the clear articulation by the ECJ that obesity may constitute a disability is likely to lead to more claims, and the impact of the ECJ’s decision could prove substantial for UK employers. The UK has one of the highest percentages of obesity in Europe; 64% of adults are classified as being overweight or obese. Employers may now be prevented from treating some employees less favourably or dismissing some obese employees because of their weight. The most important impact, however, will almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. Employers may be expected to provide specialist equipment or furniture, parking or other travel assistance and adjustments to sickness absence policies. Employers will need to consider their responsibilities towards obese workers whose weight impacts on their ability to participate in the workplace.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/obesity-can-be-a-disability-ecj-confirms/

Obesity can be a disability: AG gives opinion in ECJ case

As we reported in Be Aware on 1 July, the ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination.

On 17 July the Advocate General gave his opinion in the case. The AG said that whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, severe obesity can be a disability covered by the protection against disability discrimination if it, in interaction with various barriers, hinders full and effective participation of the person concerned in professional life on an equal basis with other workers. By severe obesity the AG was referring to morbid obesity, meaning a BMI of 40 or more (around 21 stone for an average height man).  If an individual is classified as morbidly obese, they may be disabled if the obesity has a real impact on their ability to participate in work. 

This could have implications for both employers and service providers particularly in relation to the duty to make reasonable adjustments, if the ECJ takes the same view. We will be monitoring the case and will report further when the ECJ gives its judgment.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/obesity-can-be-a-disability-ag-gives-opinion-in-ecj-case/

Testing the boundaries of disability discrimination

Guy Lamb, a Partner in our Leeds  office, comments: Two cases this month have raised questions as to how far the protection of disability discrimination law should extend.

 Reasonable adjustments

 In Hainsworth v Ministry of Defence, the Court of Appeal rejected an attempt to increase the scope of so-called associative discrimination. In Coleman v Attridge Law the EAT held that protection from direct disability discrimination should extend to employees who are associated with a disabled person. Protection from direct associative discrimination was subsequently extended to all protected characteristics in the Equality Act 2010. In Hainsworth the claimant (supported by the Equality and Human Rights Commission as interveners) sought to argue that the duty to make reasonable adjustments also ought to extend to employees who are associated with a disabled person. Ms Hainsworth was employed as a civilian teacher attached to the British armed forces and required to provide her services in Germany. She asked to be transferred to the UK in order that her daughter, who has Downs Syndrome, could receive specialist education. When her request was rejected she brought the claim for disability discrimination claiming that it would have amounted to a reasonable adjustment to allow the transfer. The Court of Appeal held, however, that the duty to make reasonable adjustments only arises in respect of employees and prospective employees who are themselves disabled; there is no associative duty to make reasonable adjustments. 

Is obesity a disability?

The Equality Act 2010 has already been interpreted as protecting employees who suffer from physical and mental conditions which result from obesity (in the 2012 EAT case Walker v Sita Information Networking Computing Ltd),  but obesity has been rejected as a disability in its own right by the UK courts. However, in a case which was heard last month the ECJ was asked to determine a reference which could significantly extend the scope of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) because it was deemed that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.

If the ECJ rules that obesity can be a disability, the impact could prove substantial for UK employers. The UK has one of the highest percentages of obesity in Europe; 64% of adults are classified as being overweight or obese.  The Equality Act would need to be applied very differently if employers are required to treat obesity the same as any other physical or mental impairment. Employers would be prevented from treating an employee less favourably or dismissing the employee because of their weight. The most important impact, however, would almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. Employers may be expected to provide specialist equipment or furniture, parking or other travel assistance and adjustments to sickness absence policies.

The latest statistics published by the Government indicate that the number of disability discrimination claims has fallen substantially following the introduction of fees, but as disability claims are among the most difficult and expensive to defend and awards can be higher than in other jurisdictions, any extension of the scope of disability discrimination would not be welcomed by employers.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/testing-the-boundaries-of-disability-discrimination/