23 December 2014

Following on from last week’s news story Obesity can constitute a disability at work, Richard Smith, Croner Head of HR at Wolters Kluwer, looks at recent employment law developments and what impact these will have on UK businesses.

In a long-awaited ruling, the Court of Justice has determined that obesity can constitute a “disability”, but only if it hinders the full and effective participation of the person concerned in their professional life on an equal basis with other workers.

What does this mean in practice?

Does this mean that anyone who is obese is considered disabled? No, only where the impact of obesity has an effect on normal day to day activities.

Will this case be followed in the UK? Yes, because it is an EU decision — but how it is interpreted in the UK may be open to debate.

Was obesity covered in the UK already? Arguably yes, if it were considered a long-term physical impairment.

What are an employer’s obligations? For pre-employment there should be no discrimination on the basis of a person’s size. There is the possibility that some cases will arise, but we expect those to be few and far between.

In employment there may be requests/reasonable adjustments to consider, eg specialist equipment, allocated parking, bigger portions from the canteen, supersized lunch breaks. Where the requirement is reasonable we would expect that businesses have dealt with this anyway, particularly if there is a health and safety requirement, such as a chair that supported a worker’s weight.

In the termination of employment, size should not be used unless reasonable; however, it may be relevant if, for example, the worker cannot undertake their duties effectively (for example, a firefighter who cannot climb a ladder or carry a weight).