When you dive deeper into the judgement, the European Court confirmed that EU law does not lay down a general principle that you can discriminate against someone for being obese.
Instead, it stated that obesity can be considered a disability if it causes a physical, mental or psychological impairment that may hinder the full and effective participation of the individual in professional life and is long term (lasting for or likely to last for 12 months or longer).
Therefore it is the resulting conditions or side-effects of being overweight that could amount to a disability, and are potential grounds for discrimination.
The court gave particular examples such as reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when working.
The European court's ruling followed the Advocate General's reasoning on the case of Mr Kaltoft, a Danish childminder who is obese and who lodged a case claiming he was singled out for redundancy because of his size. This ruling is now binding across the EU.
So, in practical terms, what does this mean for HR professionals?
It is neither tactful nor advisable to sit down with larger employees to talk to them about whether their size affects their ability to do their role. Discrimination law warns us against making stereotypical assumptions. Doing so can lead to grievances and possible complaints of constructive dismissal. This applies to both existing workers or people applying for a job.
While an employer is under no obligation to make reasonable adjustments until they know an employee is actually disabled, best practice suggests that a well-worded equal opportunities policy would be advisable. This policy should encourage staff to come forward if they believe something prevents them carrying out their roles. This will enable HR to work with the person and decide whether any reasonable adjustments need to be made.
For example, if a factory worker is less productive than their colleagues because they cannot move around as quickly then a reasonable adjustment may be to change their role or adjust their targets – whether they are deemed disabled or not.
HR professionals should also be alert for any worker who has persistent health issues as this may indicate that they have a disability. Whatever the cause, the effect may be a substantial and long-term effect on their ability to carry out day-to-day activities.
Ultimately it is in the company's best interest to work with its staff to retain talent, rather than go through a costly and time-consuming recruitment process. If practical changes can be made to support a person's performance growth then that is typically the best solution all round.
Beverley Sunderland is a director at Crossland Employment Solicitors
