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Obesity And Disability - European Court Decision

Obesity And Disability - European Court Decision

The European Court has now delivered its judgement in the case of Kaltoft v The Ministry of Billund.  The Court follows the opinion of the Advocate General which we previously highlighted in an earlier blog in July.

The question for the Court was whether obesity was covered by disability discrimination under EU law.  The Court rules that obesity does not qualify automatically as a disability but equally is not excluded.  Obesity is a form of physical impairment which may, depending upon its effects, amount to a disability.  It is for national courts to decide on a case by case basis whether the obesity amounts to a disability.  In the UK, in terms of the Equality Act 2010, that would require demonstrating a substantial and long term adverse effect upon the ability to carry out normal day to day activities.  The Employment Appeal Tribunal last year overturned a Tribunal judgement and found that a claimant suffering from obesity and related conditions was also disabled having regard to this definition.  The Employment Tribunal ruled that there was no disability because no physical or mental cause could be identified.  The EAT ruled that the critical issue is the effect of any impairments rather than their cause.

As we highlighted in our previous blog, employers should be aware of these issues when managing sickness absence or determining fitness for work.  As with any other condition, severe obesity resulting in disability will give rise to various legal obligations, in particular the requirement to make reasonable adjustments to working practices and/or premises.

In the oil and gas sector, this area has generated publicity alongside the CAA review and recommendations resulting in regulations which will, with effect from April 2015, prohibit helicopter operators from carrying passengers on offshore flights whose body size is incompatible with push out window emergency exit size.  It is important to note that this new regulation is not about obesity as such but rather physical dimensions.  Guidance references passengers who are defined as “extra broad” meaning those exceeding 14 inch chest depth or 22 inch shoulder width.  For such individuals, the guidance is to allocate them to seats with a different type of access which is larger.  If an employee in such circumstances were to be classified as being disabled, it is highly unlikely that a Tribunal or Court would require an employer as part of reasonable adjustments to provide an alternative transportation methods.  Rather, it is more likely that an employer would require to consider how it may assist the employee to reduce physical size, different seating allocation to a larger exit or ultimately alternative onshore employment.

Sean Saluja
Partner

LChalmers