Legal Update: Obesity claims: The thin end of the wedge for EPL insurers

Employment practices liability insurers are waiting with interest for developments following an indication in a recent European case that obesity might amount to a disability, for disability discrimination purposes.

The obesity epidemic in the UK regularly hits the headlines, with predictions that more than half the population will be obese by 2050, and figures suggesting one‑third of British children and two‑thirds of British adults are already overweight or obese.

The ‘disability’ definition
In order to bring a successful claim for disability discrimination, an employee must, as a preliminary point, establish they are suffering from a disability. ‘Disability’ is defined under the Equality Act 2010 as a “physical or mental impairment” that has a “substantial or long‑term adverse effect” on an individual’s “ability to carry out normal day‑to‑day activities”.

Tribunals are more interested in the effect of an impairment than its cause. It has been held previously that obesity is not, in itself, an impairment for disability discrimination purposes, but that obesity may make it more likely that an individual has impairments within the meaning of the legislation.

Advocate general’s opinion
However, in a recent referral to the European Court of Justice by the Danish courts (FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C‑354/13), the court was asked to clarify whether there is a general prohibition in European Union law on all forms of discrimination including obesity, or, alternatively, whether obesity can be classified as a disability within the scope of the Equal Treatment Framework Directive.

Kaltoft, a childminder, was dismissed by the Municipality of Billund after 15 years’ service. He had a body mass index of 54 – making him “severely obese”, according to the rankings of the World Health Organisation – and, claiming he was dismissed as a result of his obesity, brought discrimination proceedings against his employer.

The advocate general concluded that while there is no general principle of EU law prohibiting discrimination on grounds of obesity, severe or morbid obesity may amount to a disability under the directive.

Not every illness would fall within the scope of disability – hindering “full and effective participation in professional life on an equal basis with other workers” is key.

There does not necessarily need to be a link between capacity to carry out a particular job and the disability. The impairment does not need to make work impossible, but must make it more difficult to carry out that work.

Mere obesity would be insufficient to qualify as a disability. Most probably only WHO class III obesity – defined by a BMI of 40 or above – will mean limitations of mobility, endurance and mood. This would amount to disability under the directive.

Practical implications
The ECJ’s judgment is not due for several months. However, it is anticipated the court will follow the advocate general’s opinion.

Consequently, employers could face an increased burden to make workplace adaptations that accommodate severely obese employees to avoid disability discrimination claims for failing to make reasonable adjustments.

Such adaptations could include acquiring stronger, wider furniture, increasing space around workstations and introducing more sedentary duties as necessary. Failure to do so could, in the future, lead to an increase in employment tribunal claims for EPL insurers to deal with.

Andrew McDonald, partner, and Judith Davison, professional support lawyer, BLM

This article was published in the 23 October edition of Post magazine.