Employers will need to review circumstances for obese employees whose weight is causing them problems in the workplace, following a landmark ruling by the European Court of Justice (ECJ).
The Court has ruled that if the obesity of a worker “hinders the full and effective participation of that person in professional life on an equal basis with other workers”, then obesity can fall within the concept of “disability”. The decision is binding across the European Union and creates a precedent that is likely to have a major impact on employment rights in the UK.
Although the judgement stops short of declaring obesity to be a protected characteristic against which all discrimination is prohibited, it means that employers, retailers and venues open to the public will have to review the way they treat overweight staff and customers. In the UK, obesity levels have doubled in the past decade and statistics show that around one in four people are overweight.
Employers will have a duty to take “reasonable” steps to accommodate any obese employee, visitor or customer. That could mean a bigger desk, larger chair or offering a parking space close to the office.
It’s not just employers, as anywhere that’s open to the public, such as retail outlets, restaurants and sporting venues, will have to make reasonable adjustments for their customers. However, it is about reasonable response, so it’s very unlikely that a corner shop will be expected to make the same sort of investment as a major high street retailer, for example.
The case of Kaltoft v Municipality of Billund involved a Danish childminder who claimed that his employer had ended his contract of employment because of his weight, and this amounted to unlawful discrimination. Mr Kaltoft was 5 feet 7 inches and weighed over 25 stone, with a BMI of 54, which is extreme or morbid obesity under the World Health Organisation classification.
The Danish court referred the case to the ECJ, asking whether obesity amounts to a form of disability under the Equal Treatment in Employment Directive. Following the ruling, the Danish courts will now have to review the case to decide whether Mr Kaltoft’s weight has given rise to factors that can be classed as a disability.
Employers will, as a result, need to be even more alert to employee health and workplace obstacles. Employers should consider the following:
- Think before taking any performance management steps – are there other possible reasons such as disability as to why the employee is showing signs of struggling at work.
- Hold a “Return to work” interview for all returning employees who have had a prolonged period of sick leave. This can alert an employer to any potential issues and make further enquiries.
- On redundancy and dismissal is your standard practice or procedure disadvantageous to those with disability?
As well as dealing with the problems that obesity may give rise to, all employers should make sure they encourage healthy lifestyles at work.
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