A recent decision of the European Court of Justice (ECJ) is likely to impact employers in the UK.
The ECJ stated that whilst there is no general principle of non-discrimination on the grounds of obesity, severely overweight workers could benefit from disability discrimination legislation if their obesity amounts to “a limitation resulting in particular long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
The Advocate General suggested that a BMI of 40 is an appropriate factor in determining obesity however each court will need to consider each case on its merits.
In the UK the EAT has ruled that obesity itself does not constitute a disability but the effects of obesity might make it more likely that a worker has a disability to afford him protection within the meaning of the Equality Act 2010.
Employers need to be prepared for disability discrimination, harassment and/or failure to make reasonable adjustment type claims. Factors that employers will need to consider are requests for parking arrangements, larger desks/chairs or taking measures to reduce walking/climbing stairs. Also banter relating to obesity could amount to harassment and employers should train employees accordingly. Employers are under an obligation to make reasonable adjustments, not adjustments at any cost.