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Thursday, 17 July 2014
Is obesity the new disability?
Does obesity qualify, without more, as a disability? If yes, then the
duty to make reasonable adjustments might include employers having to
provide bigger chairs and desks, car parking spaces near the front door,
and duties involving less mobility.
The Advocate General has, today, issued an opinion on this point in Kaltoft v The Municipality of Billund. The first part of the opinion held that obesity was not a protected characteristic per se under the Equal Treatment Framework Directive. Pretty obvious stuff.
The main part of the opinion considered whether obesity, without more,
fell within the definition of a disability. The Advocate General
pointed out the EU definition of disability covers the situation when a
physical or mental condition makes "carrying
out of that job or participation in professional life objectively more
difficult and demanding. Typical examples of this are handicaps severely
affecting mobility or significantly impairing the senses such as
eye-sight or hearing."
He went on to say that in "cases where the
condition of obesity has reached a degree that it, in interaction with
attitudinal and environmental barriers, as mentioned in the UN
Convention, plainly hinders full participation in professional life on
an equal footing with other employees due to the physical and/or
psychological limitations that it entails, then it can be considered to
be a disability."Note: 'can', not 'must' be a disability.
Bottom line: if the individual has a Body Mass Index of 40 or more, so
is classified as 'morbidly obese', they might be disabled if the obesity
has a real impact on their ability to participate in work. If not,
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Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.
Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.