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Are the obese protected from disability discrimination?

Meredith Hurst Thursday, February 5, 2015

The Equality Act 2010 codified equality legislation affording protection to those with particular protected characteristics including race, sex, disability, sexual orientation and religion and belief.  More recently, there has been a flurry of debate about another group where important protections do not automatically bite, namely the obese. Should an individual derive protection by reason of obesity and if so what issues arise?

The story begins in 2013 with Walker v Sita Information Networking Computing Ltd.  This is a UK appellate authority where the Employment Appeal Tribunal (EAT) found that an obese claimant who suffered from a number of physical and mental conditions was disabled not by reason of his obesity of itself, but because of the impairments that this gave rise to. Under existing disability legislation, a person has a disability if they have a physical or mental impairment, which has adverse effect on his ability to carry out normal day-to-day activities.  Mr. Walker suffered from so-called 'functional overlay' made worse by his weight. He had various conditions including asthma and chronic fatigue.  The EAT held that obesity does not render an individual disabled but it might mean that they are more likely to be.  The upshot of this case is that individuals are not protected from unfair treatment merely because they are obese, but only if that obesity causes physical and mental impairments which have an effect on their day-to-day activities. It is the impairment itself that should be the focus rather than its cause but this is not the same as saying that obesity is a disability.

The European position stems from the Danish case of Kaltoft v Kommunernes Landsforening.  Under the Equal Treatment Framework Directive, member states should implement legislation to prohibit discrimination. The Directive does not define disability but case law has established that it encompasses limitations which hinder participation in professional life.  Mr Kaltoft worked as a child-minder. He was dismissed after 15 years because he unable to carry out elements of his job by reason of his weight. The District Court in Denmark referred questions to the European Court of Justice (ECJ) for clarification. The advocate general opined that there is no general legal principle prohibiting discrimination on the grounds of obesity; however, in his opinion severely obese people (those with a BMI in excess of 40) may be disabled.

The ECJ agreed with the Advocate General's first point that EU law must not impose a principle of law of non-discrimination on grounds of obesity.  Unlike the Advocate General however, the ECJ did not agree that severe obesity might render a person disabled.  Disability would depend upon the circumstances of the case.

We have come full circle. The ECJ decision accords with Walker. Obesity is not a disability of itself but the effects may render a person disabled if they hinder a person's participation in professional life.

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