You may remember the media hype last year around the question of whether obesity constitutes a disability requiring employers to make reasonable adjustments. We blogged about this on 22 July 2014 and again on 29 December 2014. Essentially, the ECJ has agreed with the Advocate General that there is no principle of EU law prohibiting discrimination on grounds of obesity. However, provided conditions are met, it could amount to a disability. Ultimately, its up to the Employment Tribunal to apply the tests in section 6 of the Equality Act 2010 to determine whether the individual is disabled.
Since the ECJ’s decision, the Northern Ireland Industrial Tribunal has unanimously decided that a Claimant is disabled because of his morbid obesity condition.
In the case of Bickerstaff v Butcher, Mr Bickerstaff alleged that he was harassed by colleagues, in particular Mr Butcher, because of his weight at the laboratories at which he worked. Mr Butcher made comments relating to the Claimant such as he was “so fat he could hardly walk” and he was “so fat he would hardly feel a knife being stuck into him”. Mr Bickerstaff brought a claim for disability harassment in the Employment Tribunal.
Mr Bickerstaff suffered from sleep apnoea and gout which was linked to his morbid obesity. The Claimant has a body mass index of 48.5. The Tribunal considered the ECJ’s decision in Karsten Kaltoft, the Danish childminder and concluded that Mr Bickerstaff had been harassed for a reason which related to his disability. The ECJ test was whether the obesity hinders the full and effective participation at work. The Tribunal ruled that in Mr Bickerstaff’s case, it did.
What is interesting about this case is that the medical evidence raised the fact that Mr Bickerstaff’s obesity was self-inflicted and his health could improve if he lost weight. The Tribunal were concerned with the impact and not the cause. This has to be the right decision in my view. Employers should consider educating employees and managers on this issue since the ECJ has confirmed that obesity can be a disability to prevent claims for disability harassment.
We carry out training for employers on all areas of employment law including disability discrimination so if you would like to know more, give us a call for a free no obligation chat.