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European Court to rule on whether discrimination on grounds of obesity is contrary to EU law

Posted by TonyBrownEmploymentSolicitor on September 30, 2013

Is obesity a disability for the purposes of the Equality Act 2010?

Probably not in itself but an employee's obesity may make it more likely that s/he is disabled, with the result that s/he is protected from disability discrimination and entitled to reasonable adjustments.

In the next case, the Claimant suffered from a variety of complaints, including asthma, knee problems, diabetes, high blood pressure, chronic fatigue syndrome and anxiety and depression, causing him pain in the head, knee, abdomen, lower back and shoulder, shortness of breath constant fatigue, poor concentration and memory, all of which caused the Claimant significant difficulty in his day-to-day life.

There was no recognisable physical or mental cause for the symptoms and they were regarded as ‘functional overlay’ (that is, an overreaction to illness) made worse by his being obese (at over 21 stones).

The tribunal ruled that because no physical or mental cause could be identified for his symptoms, the Claimant was not disabled within the DDA (now the Equality Act 2010).

Allowing the Claimant’s appeal, the EAT said that the tribunal was wrong to focus on the cause of the Claimant’s impairments and should instead have had regard only to the effect of the impairments because what is important is the effect of an impairment, not its cause.

However, the EAT refused to accept the Claimant’s argument that obesity is a disability of itself, although it recognised that obesity may make it more likely that someone is disabled.

Comment

For the moment at least, the prevailing view is that obesity does not, of itself, render someone disabled. Therefore, merely because someone is obese does not trigger a duty of reasonable adjustment. However, the consequences of obesity, such as reduced mobility, if they are both substantial and long-term, may well mean that the person concerned falls within the statutory definition.

However, this may not be the last word. The Court of Justice of the European Union has been asked to rule on whether discrimination on grounds of obesity is contrary to EU law. The case involves a child minder who was dismissed because he was obese. If the Court of Justice rules in his favour obese employees will qualify for protection under the Equality Act.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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