You may have seen news reports this week about an obese Danish child-minder fighting for his employment rights in the European Courts. Mr Kaltoft believes that he was sacked by his employer because he was fat.
The European Court of Justice will decide whether obesity should qualify as a “disability” under Equality legislation, a decision that has potentially far-reaching ramifications for both employers and employees alike.
Under UK employment law, a disability is a physical or mental impairment that has a substantial and long term adverse affect on an individual’s ability to carry out normal day to day activities.
The current legal position in the UK is that obesity is not classed as a disability. However, an obese person may have other health difficulties that can be associated with and potentially compounded by obesity, such as mobility difficulties, diabetes or depression. These health conditions may qualify as disabilities, thereby giving the individual legal protection from disability discrimination at work.
Disability discrimination at work can take many different forms. It includes harassment because of a disability, or being treated less favourably than a non-disabled worker in matters such as promotion or pay. Employers also have a legal duty to make reasonable adjustments to support disabled workers in the workplace.
For example, if somebody has hearing difficulties it may be possible to provide them with an adjusted telephone so they are not disadvantaged when dealing with telephone calls. A Dyslexia sufferer may benefit from specialist computer software or additional time to complete work assignments.
Obese people who do not have other associated health issues which mean they qualify as disabled under UK employment law, are not currently protected from disability discrimination solely on grounds of their obesity. However, Mr Kaltoft’s case could change all of this. If the case is decided in his favour, this will need to be taken into account by the English Courts. If obesity amounts to a disability, employers would be legally required to make reasonable adjustments for an obese worker; for example a larger chair or a parking space closer to the office.
It's important to note that the duty to make adjustments only requires employers to do what is “reasonable”. This depends on individual circumstances but relevant factors could include:
- The financial and other resources available to the employer
- The financial cost of making the adjustment/s
- Whether making the adjustment is practicable, and
- The extent to which the adjustment will alleviate the disadvantage the individual suffers as a result of their disability.
In many cases, where an adjustment will effectively remove or significantly reduce a disadvantage suffered by a disabled person because of their disability, it can be difficult for an employer to argue that the adjustment is not reasonable.
Including obesity as a disability would also give obese workers the right to take legal action for workplace harassment by bosses or colleagues because of their size, which would significantly enhance their protection against that sort of treatment.
Regardless of the decision in this case, obese workers may already have protection if they have related health conditions that qualify as disabilities.
If you consider that you are being discriminated against at work because of your size, or that your employer has failed to make reasonable adjustments to support you in the workplace; please call freephone 0800 916 9060 and ask to speak with a Disability Discrimination Solicitor or contact us online.
Clare Parkinson is an Employment Solicitor specialising in Disability Discrimination Law at Slater and Gordon in Manchester.
Slater and Gordon Lawyers have over 1,200 staff and offices London, Manchester, Liverpool, Birmingham, Sheffield, Halifax, Milton Keynes, Bristol, Cambridge, Edinburgh, Cardiff, Halifax, Newcastle, Wakefield & meeting rooms in Bramhall, Cheshire.