The Equality Act 2010 protects particular characteristics, such as race, sex, disability, sexual orientation and religion. More recently, there has been debate around whether an individual can derive protection by reason of obesity.
The story begins in 2013 with Walker v Sita Information Networking Computing. The UK Employment Appeal Tribunal (EAT) found that an obese claimant who suffered from physical and mental conditions was disabled not by his obesity itself, but due to the impairments it gave rise to.
Under existing legislation, a person is disabled if they have a physical or mental impairment that has adverse effect on their ability to carry out normal activities. Walker had various conditions, including asthma and chronic fatigue. The EAT held that obesity doesn’t render an individual disabled but might mean they are more likely to be.
The upshot of this case is that individuals are only protected from unfair treatment if their obesity causes physical and mental impairments that have an effect on their day-to-day activities. This is not the same as saying that obesity is a disability.
The European position stems from the Danish case of Kaltoft v Kommunernes Landsforening. Kaltoft was dismissed because he was unable to carry out elements of his job by reason of his weight. The European Court of Justice’s (ECJ) advocate general ruled that there is no legal principle prohibiting discrimination on the grounds of obesity. However, in his opinion, severely obese people (those with a BMI over 40) may be disabled.
Unlike the advocate general, the ECJ did not agree that severe obesity might render a person disabled. Coming full circle, this decision accords with the Walker case. Obesity is not a disability of itself but the effects may render a person disabled if they hinder his or her participation in professional life.
Meredith Hurst is a partner at Thomas Mansfield Solicitors
Check back tomorrow for part two of this Hot topic