Implications of European Court obesity judgement

A recent ruling by the European Court of Justice found that obesity could constitute a disability in certain circumstances where an individual’s weight hindered their "full and effective participation" in the workplace.

The ruling - effective across all EU member countries - was made in a case bought by an obese Danish male childminder who said that he was sacked because of his weight. He could not, for example, reach down to tie a child's shoelaces.

The court ruled that where a person had an impairment because of their weight, they may be afforded protection under disability legislation.

The ruling is a reminder for companies to examine their existing responsibilities to their staff – ensuring they are compliant with current legislation and au fait with the often complex issues regarding discrimination on the grounds of disability. There are two distinct strands to this. First, employers must avoid treating disabled staff 'less favourably' than non-disabled staff, except where there is a clear rationale for this. For example, it would be justifiable to reject a blind candidate for a driving job.

Second, there is a duty to make ‘reasonable adjustments’ to the workplace, working conditions, and the allocation of duties, to assist disabled workers to stay in employment.

These changes need not be expensive, and what is deemed reasonable depends upon the nature and extent of the disability, the practicalities and costs involved, and the size and the financial resources of the organisation.

Adjustments can range from something minor such as providing a keyboard wrist support for a RSI sufferer, through to more substantial alterations such as widening a narrow corridor, installing a ramp for a wheelchair user or even a lift, as a department store was recently ordered to do, so that wheelchair users could access all floors of the building.

Where such changes are not practicable or would make no difference to the employee's ability to do their job, an employer would not be required to make them. The legal term for this is ‘objective justification’.

Objective justification can only be applied in certain situations, such as when the health, safety and welfare of other individuals could be compromised, or where the requirements of a business - including the efficiency of service and its ability to make a profit - would be jeopardised by accommodating the requirements of the disabled employee.

An example of how involved these issues can be arose recently in West Yorkshire. A disabled bus passenger claimed that his local bus company's disability policy was discriminatory because he had not been given priority over a woman with a pushchair who was already on the bus.

Following a protracted legal process, the bus company successfully demonstrated that it was not feasible to provide designated spaces for every potential disabled customer. It was found that they had made “reasonable adjustments” by providing disabled spaces and were not required to give disabled passengers priority access to travel to a greater extent than that.

Obesity is an epidemic in the UK that shows no signs of diminishing. With official figures revealing that 1 in 4 UK adults are obese and with taxpayers paying £54million annually in sickness benefits to claimants deemed too fat to work, there will undoubtedly be increased political demands upon employers to accommodate obese workers.

What the Danish case has demonstrated is that it is no longer open for employers to 'pretend' that obesity cannot be a disability. In most cases it will be, if it interferes with the ability of the sufferer to carry out everyday tasks.

For more information contact Barry Warne on 00 44 114 252 1437 or email [email protected]