Yes possibly, if the individual is morbidly obese (a BMI of more than 40) and the obesity “plainly hinders participation in professional life”.
This is the opinion of the Advocate General in the European Court of Justice (ECJ), given in the case of Mr Kaltoft, a morbidly obese Danish child minder, who was dismissed by his city council employer because he was unable to carry out his duties. Mr Kaltoft argued that part of the reason for dismissal was his weight and that this was discriminatory.
The Advocate General said that the cause of an individual’s obesity is irrelevant, so an individual will not lose the protection of discrimination legislation, even if they have caused their own obesity.
The AG’s opinion is not binding but is very often followed by the ECJ when it gives its final decision in a case, which we can expect in the next few months.
But what are the potential consequences?
- Given that in 2012, according to Public Health England, 62% of adults in England were overweight or obese, “disability” problems with overweight employees arising from their weight or associated health problems are only going to become more common.
- This case does not involve a fundamental change in the law, but puts the spotlight on how obesity can be or can cause an impairment under the Equality Act.
- The UK courts have not yet recognised obesity as a disability, in itself. However, they do currently recognise that obesity might make it more likely that an individual is found to be suffering from an impairment.
- The practical advice for employers is to focus on whether an overweight or obese employee is suffering from an impairment that has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. Focusing on specific BMI measurements is impractical and potentially misleading.
- Where the duty to make reasonable adjustments is triggered, adjustments that would address obesity itself may include adapting work stations or reducing walking or standing time.
- Given the sensitive personal nature of obesity, employers will need to take great care in any discussions that they have with obese staff, and should not make stereotypical assumptions.