Today, the European Court has ruled that obesity, unlike sex, race or age, is not in itself a characteristic which attracts the protection of discrimination laws. However, if severe enough, it could be a type of disability which is protected. This could be the case even where there is no medical condition related to the obesity, such as diabetes. The causes of the obesity are simply irrelevant: obesity will be a disability where it “hinders full and effective participation of the person concerned in professional life on an equal basis with other workers”.
Nicola Kerr, head of Employment at King & Wood Mallesons, said:
“This ruling has been widely anticipated, but raises a number of practical problems for UK employers dealing with very obese staff. Employers may now need to seek medical advice to determine whether an employee’s obesity is severe enough to be considered a disability by the courts, and if so, whether adjustments to the workplace are necessary.
That said, there is no clear trigger point when an employer must refer an obese employee to a doctor. Under previous UK case law, advice would usually have been sought because of a specific medical condition, such as diabetes. After today’s judgment, employers may have to raise the issue of the employee’s obesity on its own, and such sensitive discussions may trigger complaints or even discrimination claims if not carefully handled. The ruling may also mean that employers will need to implement considerable physical and practical changes to a person’s workplace in order to remain compliant.
There is also a cultural implication. In workplaces where nicknames and comments about size or shape may be seen as acceptable and harmless, how do employers go about changing behaviour for the better?
Perhaps more significant is the impact this will have on the general perception of obesity in the long term. With obesity on the rise, this ruling will mean that even more people will be protected by discrimination laws, with the potential for uncapped employment tribunal claims.”
Charles Staples is an editorial assistant at HRreview.
This is ludicrous and will only serve to worsen our obesity crisis, not to mention keep the tribunals process very busy. I eagerly look forward to hearing the official response from the NHS to this decision.
This ruling further erodes taking personal responsibility for lifestyle choices, and instead transfers some very risky liability onto employers, e.g. needing sensitive, personal, delicate discussions with the individual which itself will bring risk of tribunals.
To rule that the cause of obesity ‘is irrelevant’ is madness. Obesity is caused – in ALL CASES – through inadequate PERSONAL CONTROL of calorie balance, whether through consumption, exercise or both. It is biologically, chemically and physically impossible to ‘make’ more calories than are consumed (i.e. to build fat from nothing).
Obesity as a condition, and the physical limitations that it can impose, are both entirely reversible – IF THE INDIVIDUAL CHOOSES TO ACT. And I say this as someone who in less than 12 months has gone from a non-exercising 230 pounds to a slimmer 180 stones and much fitter by simply CHOOSING to eat better and take up cycling at the tender age of just 42. It’s never too late to make a change.
Obesity is a self-inflicted condition, caused entirely by bad lifestyle choices made by the individual. It can’t even be blamed on ignorance of diet and exercise, considering that both of these subjects are so well documented, published, promoted and freely available to anyone. If someone’s bad conscious choices lead to outcomes where their work performance IS affected, then the onus should be upon the EMPLOYEE to act in order to reduce their obesity to remove or diminish the physical limitations that they are encountering.
Try this as an analogy: A worker loves online gaming at home and stays up until 4am every morning playing games – but is then unable to perform satisfactorily in their job due to self-inflicted sleep deprivation. Their sleep-deprivation has been a conscious choice which is now impacting their work performance. Is an employer expected to make ‘reasonable adjustments’ to the workplace for them (e.g. provide a quiet ‘nap’ space, or a low-light zone for their tired eyes) for this ‘disability’? Clearly this would be unjustified – it has been the worker’s lifestyle choice and they should deal with the consequences.
Why should obesity be any different to other self-inflicted issues which impair someone’s ability to perform? It is not the employer’s responsibility to manage someone’s weight, nor make workplace adjustments to accomodate someone’s bad lifestyle choices.
Paradoxically – if an employer DOES make adjustments to the workplace for an obese worker because the person CAN’T BE BOTHERED to manage their weight, should the employer also make workplace adjustments for employees who DO actively manage their weight and fitness, e.g. giving me additional paid time off to accommodate my cycling!
Equality may perhaps be a right, but no power on Earth can ever make it a fact – Honore de Balzac. Having established that as a basic concept from the C18th, it perhaps comes as no surprise to hear I welcome imminent retirement, when I no longer have to tolerate the implications of assinine judgements from the European Court. I concur, by and large, with James Deacon’s comments and would emphasise that obesity is indeed a self-inflicted condition (in much the same way as smoking or alcohol and drug misuse is the result of poor life choices). As a large organisation, we have comprehensive, robust, realistic and caring policies on smoking, alcoholism and drug misuse but they are categoric and do give the individual the opportunity to understand the consequences whilst considering the options. Obesity should be dealt with in a similar vein: yes, we have fat people at work and we also have someone who is morbidly obese (that, for those who don’t understand, means the individual is going to die through the inability to control the excessive consumption of food through their mouth); when Occupational Health was consulted for their ‘well being’ advice they suggested the individual should diet – pure genius! The individual ‘backs’ into a toilet cubicle and then gets wedged and has to be helped out, with clothing down around the ankles and hygiene obviously not at the forefront of their consideration, either for themselves or their ‘helpers’. No, whilst I remain incumbent, we will not consider extraordinary arrangements to make reasonable adjustments to cater for folk who can’t control their worst excesses and no, we won’t be conducting courses to stop folk calling fat people ‘Fatty’ (which, in the main, actually doesn’t happen in the ‘real World’ – that is, outwith HR).
2 points; 1 medical and one non-medical.
I’m an Occupational Physician and worked as a GP for 10 years before re-training to become a specialist in Occupational Medicine. So I tend to think in terms of a medical model of disability. Someone who is on heavy treatment for lung cancer and is terminally ill easily meets a definition of “disabled”. Currently, the NHS doesn’t withhold treatment simply because the cause is cigarette-smoking. Neither does disability legislation exclude the person for the same reason. Conversely, someone in liver failure due to chronic alcohol misuse may not be offered a liver transplant if they continue to drink. The old guidelines for the DDA made it clear that alcoholism was excluded but that disabling physical health problems resulting from alcohol damage were covered. So we have to split “addiction to calories” from resultant physical health problems (obesity-related illnesses) which meet the definition of a disability. And if someone needs help to un-wedge them from a toilet cubicle, I think that constitutes a substantial negative effect on a normal daily activity! What is health? What is disease? What is just part of life’s rich tapestry? For example, my grandparents generation accepted the menopause as something women went through as a normal part of life, not as a health condition to se their GP about. Obesity is coded as a disease in the International Classification of Diseases (ICD). The new ICD-10 in 2015 will have a code for anger and irritability, at least in the US. So as society gradually “medicalises” life, we slowly see more of those lives covered by disability legislation.
However, the lawyers have abandoned the medical model of disability in favour of a social model. This means they don’t have to wait for the slower process of medicalization. There are already many cases where the substantial negative effect on ability to do normal daily activities is accepted as a disability even if there is no clear “medical” cause.
So my jaundiced view (I must cut down on the booze!) is that the term “disabled” has been devalued to the extent that almost everyone I see is covered by disability legislation. Hoping to prove that someone is not disabled by fighting it out at Tribunal is not a path that is likely to lead to success. Better to assume people are covered by legislation, find out what adjustments are likely to help them at work and consider making those adjustments. But be aware, it for you, the employer, to determine whether or not those adjustments are reasonable. If you have good reasons why adjustments are not reasonable in practice, document your reasoning and stick to your guns.