Is Obesity a Disability?

A case in the European courts has considered whether or not severe obesity may be protected under EU anti-discrimination legislation; the decision could have significant implications in the way the Equality Act 2010 is interpreted in the United Kingdom going forwards.

In the instant case, a Danish employee worked as a childminder and had a Body Mass Index of 54, which classed him as ‘severely obese’ under the World Health Organisation (WHO) ranking. He was dismissed after 15 years of service, and claimed that he had been dismissed because of his obesity.

On reference to the European Courts of Justice (ECJ), it was held that there is no general prohibition on discrimination on grounds of obesity in its own right. However, the Advocate General considered that severe obesity may be a disability.

In particular, the ECJ made reference to the fact that employees can have long-term physical, mental or psychological impairments which make certain types of work more difficult and demanding. For example, obesity may impact significantly on mobility or an employee’s senses. It is not necessary to show that it has become impossible for an employee to carry out their role to satisfy the definition of disability.

The ECJ did make the point that only those classified under the WHO ranking as severely, extremely or morbidly obese would likely be able to qualify as a disabled person, as at these stages problems with mobility, endurance and mood impact severely on the employee.

What does this mean for the United Kingdom? The Equality Act defines an employee as disabled if they have a “physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

The Employment Appeals Tribunal has already considered the matter previously, confirming that the effects of obesity might make it more likely that an employee could show they are disabled, with reference to certain restrictions on their day-to-day activities which they may suffer from. For example, issues with mobility could be so significant that they amount to a physical impairment. Furthermore, obesity often triggers other conditions and illnesses such as diabetes, which can have an adverse impact on other capacities and bring employees within the scope of the Equality Act 2010.

Employers must appreciate that the disability discrimination provisions do not simply protect individuals with defined illnesses and conditions. The effect of any impairment must be reviewed carefully in each case, and any disadvantage an employee is put to should be alleviated wherever possible.