By Mara Thorne
Every so often a ruling by the European Court of Justice (ECJ) gets commentators muttering about “political correctness gone mad”. One recent case that spawned predictably sensational headlines involved a decision about a gentleman who claimed he had been dismissed from his job as a child minder on account of his obesity (apparently he weighed around 25 stone). The employer claimed that the employee had actually been dismissed on the grounds of redundancy because there were fewer children requiring care, but he was convinced that the real reason was his weight, and pursued his claim all the way to the ECJ. The Court was asked to rule on whether obesity could be regarded as a disability and thus be protected under EU anti discrimination laws.
The ECJ ruled that if the obesity of a worker “hinders the full and effective participation in professional life on an equal basis with other workers” then it could “fall within the concept of disability”, but stopped short of ruling that obesity per se was a disability.
This is a relief, as it would have led to all sorts of questions relating to the definition of obesity and how to differentiate between being obese and merely being overweight. Rather, it is the effects of obesity that may result in a person being regarded as disabled, with the consequence that the employer will be required to make reasonable adjustments to accommodate the needs of the individual, and the individual will be protected by law from discrimination. As this is a decision of the ECJ, the point is now beyond doubt.
Definition of disability
To constitute a disability under the Equality Act (which replaced the previous Disability Discrimination Act among others) the person’s medical condition must create a physical or mental impairment which has a substantial and long term negative effect on their ability to carry out day to day activities.
Obesity can lead to all manner of side effects such as impaired mobility, breathing difficulties, type 2 diabetes, high blood pressure, heart conditions, joint problems, or even depression, which could fit that definition.
It is easy – but dangerous – to be judgmental when faced with an obese person. The fact that these side effects may be regarded as self-inflicted (in most cases obesity is the result of inappropriate eating habits) is neither here nor there. Many medical conditions are linked (if not actually caused) by lifestyle choices including various cancers, heart disease etc., and yet the conditions themselves are recognised as disabilities. The real point is: what should employers do about it?
It is not difficult to imagine the sorts of adjustments employers may have to contemplate to accommodate the needs of obese employees:
- Letting them use disabled parking spaces and toilet facilities (or installing these if they do not already exist)
- Providing special desks or chairs
- Reducing duties that involve walking, bending, or other physical movements made difficult by the person’s size or weight
- Reducing the need for climbing stairs (whether by installing a lift if one does not already exist, or moving their workstation to the ground floor perhaps).
Not all of these will be particularly difficult or costly to achieve, particularly if your workplace is already disability-friendly, but it will require some extra thought and a more cautious attitude towards the needs of particularly corpulent individuals.
So my advice is to ignore the headlines and focus on the practicalities, and be grateful that this judgement has not led us into the embarrassing territory of inquiring about a person’s Body Mass Index when determining whether or not they may be disabled. For that at least we should thank the ECJ.
For more information about this or any other HR topic, look at the full range of services available from M Thorne Consulting Limited, your friendly, flexible HR consultancy. Check out http://mthornehr.co.uk or contact Mara Thorne on firstname.lastname@example.org