A weighty issue – is obesity a disability?
Can an employer be held liable for discriminating against an employee on grounds of their weight? Ian Machray looks at a recent decision of the Employment Appeal Tribunal.
There is no specific law against “weight discrimination”, but the Employment Appeal Tribunal (EAT) recently considered the extent to which an obese employee could qualify as disabled. If an obese employee is considered disabled they would qualify for protection from discrimination, harassment, victimisation and the employer would have to consider reasonable adjustments to help ensure the employee is not at a disadvantage in the workplace.
The EAT was clear that weight by itself could not be a disability, but it could lead to conditions that might qualify the employee for protection. Possible examples could include a long-term obese employee who suffers from mobility or breathing difficulties which has a substantial impact on their day-to-day activities. In this case, the employee suffered from many conditions – asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, anxiety and depression, sacro-iliac joint pains among others – which resulted in symptoms such as shortness of breath, constant fatigue, poor concentration and memory together with pain in many areas of his body.
The key is to focus on the impairment(s) from which the employee suffers and not the cause of the condition(s). Practically speaking, from the employee’s perspective, if the cause of their condition has not been diagnosed it is often harder for them to provide appropriate medical evidence but employers should not be tempted to assume that this means the employee is not disabled. The same principle of focusing on the impairment not the cause is illustrated when dealing with alcohol dependency, where the condition itself is expressly excluded from protection, but accompanying conditions, such as liver disease or depression, can mean that the employee is disabled.
The case serves as a useful reminder to employers that the definition of disability under employment law is wider than often expected. Any employee who suffers from a physical or mental impairment, which has a substantial and long-term effect on their ability to carry out normal day-to-day activities, will qualify as disabled.
A final point to consider about obese employees is potential indirect sex discrimination as there are more obese women than men in the UK. So employers should ensure that any workplace rules which have a greater impact on obese employees can be justified, for example, on health and safety grounds.