Efforts to lose weight come into sharp focus in January after the excesses of Christmas. How many of us have decided to shed a few pounds this month? For some, losing weight is a constant and often futile battle. It is well known that the number of overweight and obese people is increasing, but this has now become a key talking point in the work place as a result of a decision of the European Court of Justice (ECJ) which was widely (and frequently inaccurately reported) just before Christmas.
Those who attended our Employment Essentials update seminar in November last year will remember the Danish case of the child minder who was dismissed after 15 years service. He weighed some 25 stone. He brought a claim for disability discrimination arguing that he had been dismissed because of his obesity. The case eventually found its way to the ECJ which ruled that EU law does not lay down a general principle of non-discrimination on grounds of obesity. It went on to say (and forgive the complex wording but you need to see exactly what the ECJ said)
that in the event that “under given circumstances, ‘obesity’ entails a limitation which results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long term one”, it could be a disability.
Applying this principle, an obese worker who, for example, suffers on a long-term basis from reduced mobility which hinders his full participation at work, would be disabled. In other words, it is the effect of the obesity which one should focus on. This was already the case in the UK: obesity does not itself render the worker disabled but the effects – such as diabetes or mobility issues – might make it more likely that the worker is disabled in which case he will have the protection of disability discrimination laws.
It is important not to assume that just because an employee is obese you have to treat him or her differently from other employees. Instead, look at the effects of the obesity on the individual and whether these effects are long-term. Only if that results in the conclusion that he or she is disabled do you have to decide whether your work place practices place the person at a substantial disadvantage and therefore whether you should make adjustments to address this. Bear in mind that an employer is not required to go beyond what is reasonable in making adjustments.
After the dust has settled following the ECJ decision, we may realise that things have not changed that much.