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The European Court (CJEU) has recently confirmed that, whilst obesity itself cannot be regarded as a ground for protection against discrimination, where obesity, “may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one”, it could amount to a disability. This rule is binding across all EU states. Note that this does not give a specific definition with regards to a certain Body Mass Index (BMI) so each case will need to be considered individually.

When assessing whether obesity is protected as a disability under the Equality Act, the normal criteria for assessing whether the individual is disabled still applies. For example, an assessment will need to be made on whether the obesity has impacted substantially on the employee’s day-to-day life.

Previously, obese employees wanting to bring claims for disability discrimination had to establish that they suffered from a related condition, associated with or caused by the obesity, such as diabetes, joint problems or depression. However, this European case suggests that employees may (in certain circumstances) now be able to argue that obesity in itself amounts to a disability.

If you have issues with employees who may be struggling at work or having time off through sickness and this may be caused or linked to obesity, then you should treat such situations with care going forward. In particular, you may need to consider adjustments to an employee’s role or tasks where they request changes due to their weight or size, given the duty to make reasonable adjustments for disabled employees.

That will mean employers must, on a case by case basis, make reasonable adjustments such as perhaps providing larger chairs or special car parking, and protect such employees from verbal harassment. But there are wider implications. Providers of goods and services such as shops, cinemas and restaurants will also have to make reasonable adjustments for their customers, which might include things like special seating arrangements.

With one in four of the British population being classified as obese, this is likely to be a growing problem so if you have any queries about the potential impact of this ruling on your business please do not hesitate to contact Cherington HR.
Posted on 19 Nov 2016

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