Advice: A weighty issue

UK employers may soon have to treat obese workers as disabled and make adjustments for them in the workplace, including providing them with larger seats and parking spaces next to the office, depending on the outcome of a test case which could make legal history by banning bosses across Europe from discriminating against obese employees.

The case, which the European Court of Justice began hearing on 12 June, is being brought by overweight child-minder, Karsten Kaltoft, who was sacked by his local authority in Denmark for being unable to carry out his duties due to his size.

The current UK legal position

Under the Equality Act 2010, which brings into effect the European law on disability, a person has a disability if he/she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

The conventional view under UK law is that obesity does not, in itself, render someone disabled.

The Employment Appeal Tribunal considered the issue last year in the case of Walker v Sita Information Networking Limited.

Mr Walker had functional overlay, which was compounded by obesity. He suffered from numerous conditions that in themselves could potentially have amounted to disabilities. These included asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacroiliac joint problems.

The Tribunal was required to decide whether Mr Walker's functional overlay meant that he was a disabled person and the legal question was whether he had a physical or mental impairment that had a substantial and long term adverse effect upon his ability to carry out normal day-to-day activities.

Firstly, the Employment Judge decided that Mr Walker did not have a disability because there was no evidence of a mental illness causing a functional overlay and there was no discernible physical or organic cause for the condition, other than the obesity being a contributing factor.

However, the Employment Appeal Tribunal took a more holistic approach to the problem and found that Mr Walker did have a disability, which was probably a combination of both physical and mental impairments. They said that it was important to look at the effect of the impairment rather than it being necessary to consider how it was caused.

The case before the CJEU

In support of its decision to dismiss Mr Kalfoft, who weighed more than 25 stones at the time, the local authority pointed to the fact that he was unable to bend down to tie childrens' shoelaces.

The question for the ECJ to weigh up is whether Mr Kaltoft's obesity falls within the definition of disability under EU law. If it does, then by dismissing Mr Kaltoft, his employer could be liable for disability discrimination.

What might this mean for employers?

If obesity is found to be (or could amount to) a disability, it must be approached in the same way you would any other impairment. Employers will need to exercise care to ensure that they do not treat an employee less favourably because of their weight. This would extend to an employer's duty to consider making reasonable adjustments to the workplace and/or working arrangements.

So what should you do?

• It would be advisable for employers to look at their workforce and consider whether the organisation can put policies in place to encourage healthy living and whether there are any employee benefit schemes or incentives they could introduce. These could include, for example, a Cycle to Work scheme, gym membership and free health checks, making healthy snacks available in the staff canteen and vending machines and providing facilities for those who wish to cycle, walk or run to work, including storage for their equipment and showers to allow them to freshen up.

• It is also important that employers have a clear absence policy setting out how absences will be managed and that they are implemented consistently for all employees.

• Return-to-work interviews should be held for every period of absence and records kept of the number of and reasons given for each of the absences.

• When considering whether an employee may be suffering from a disability, you should look at what the actual problems are they are suffering from, rather than how those problems have been caused.

• Advice should be taken from occupational health advisers or the employee's own GP before making any decisions, particularly where dismissal is a possibility. • Employers should consider and make any reasonable adjustments for disabled employees, including those who are severely overweight or obese.