03 July 2013
THE courts have recently reopened a debate which has been raging for some time in the UK courts and amongst employers. Is obesity a disability in itself – qualifying the person concerned to protection under UK discrimination law?
Given that an increasing number of citizens are overweight, this is obviously an issue of concern to medical practices, not simply as primary care providers but also as employers.
A survey of 2,000 HR managers by the personnel profession’s magazine, Personnel Today, found that most preferred to offer jobs to workers of a “normal weight”. This survey indicated a potentially worrying attitude towards overweight employees and/or job applicants, but the important question is whether there is any legislation offering protection to such workers.
Many aspects of discrimination have been tackled by legislation. For example, job applicants and/or employees can bring employment tribunal claims if they are discriminated against on the grounds of their sex, race, age, sexual orientation, religion, marital status, gender reassignment or maternity/paternity. However, there is no employment law in the United Kingdom which directly addresses discrimination against obesity.
This is in contrast to US law. For example, in California legislation has been passed which outlaws discrimination on the grounds of height or weight.
Nevertheless, some elements of UK employment law can be used to help protect overweight job applicants and employees. The most obvious avenue is protection against discrimination on grounds of a disability.
Disability is one of the few areas of discrimination where protection is only available if the person passes a ‘test’ – based on the medical (as opposed to the social) model of disability.
The definition of disability in the Equality Act is that “… a person has a disability … if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities …”. Therefore, if a person’s obesity (or, importantly, subsidiary health conditions attributable to obesity) has lasted at least 12 months and substantially adversely affects their ability to perform everyday activities then it could be classed as a disability.
In a recent disability discrimination case considered by the Employment Appeal Tribunal (EAT), the judge found that an obese employee was disabled and therefore could bring a disability discrimination claim against his employer. The employee in the case, Mr Walker, weighed 137 kilograms (21 ½ stones) and suffered from “functional overlay” compounded by his obesity, which caused him symptoms such as asthma, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, anxiety and depression.
The original decision of the employment tribunal was that Mr Walker was not disabled because medical professionals could not find a physical or mental cause for his ailments, other than obesity. They found this because there was no single significant physical or mental impairment that caused his symptoms. The appeal tribunal overturned that decision: finding that the tribunal judge was wrong to concentrate on the literal meaning of “physical or mental impairment”. Instead of focusing on the cause of the condition, the tribunal should have considered its effect on Mr Walker.
The EAT highlighted that, in considering whether an impairment is classed as a disability, the focus should be on the nature of the impairment itself rather than the cause of the impairment. It clarified that, while obesity itself is not considered a disability, the effect of the condition can give rise to ailments which could be classed as a disability.
The appeal tribunal likened obesity with alcoholism, a disease which is expressly excluded from the definition of a disability under the Equality Act. While an alcoholic may not be disabled solely because of their alcoholism, if they go on to develop liver failure as a result, the medical impairments they would suffer would make them disabled for the purposes of the Equality Act.
Importantly, although this case was specific to its facts, if obese employees (or applicants for employment) are covered by this protection they can potentially claim discrimination in recruitment processes if they are refused a job purely because of their condition. They may also claim adverse treatment whilst they are employed (such as harassment, on grounds of their obesity, by colleagues) or unfair dismissal, if this was purely related to their disability.
Guidance on disability discrimination under the Equality Act does say that account should be taken of how far a person can reasonably be expected to modify their behaviour to prevent or reduce the effect of any impairment on day-to-day activities. However, an employer must still be sensitive to the complicated issues that can cause a person to be overweight and not simply assume that it is just a matter of dieting and exercise.
Put simply, employers need to be aware of the potential for unfair treatment of workers with obesity and put in place measures (such as training for staff and fair recruitment practices) to reduce the likelihood of legal claims from obese people who are treated badly in the workplace.
Ian Watson is training services manager at Law At Work
Law At Work is MDDUS preferred supplier of employment law and health and safety services. For more information and contact details please visit www.lawatwork.co.uk
From Summons Summer 2013, p 8
Summons Summer 2013
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