I think most were shocked when the European Court of Justice declared that “obesity can constitute a disability”. It was said that, albeit EU law does not have a general principle of non-discrimination on the ground of obesity, the Equal Treatment Directive (2000/78/EC) “must be interpreted as meaning that obesity of a worker can constitute a disability”.
The recent case of Bickerstaff v Butcher, in a Northern Ireland Tribunal, became the first to apply the ECJ’s decision in the case of Karsten Kaltoft v Billund Kommune [2015] IRLR 146 ECJ that obesity can by itself amount to a disability if the obesity hinders “full and effective participation” at work. Subsequently, the Tribunal unanimously decided in this case that, as the Claimant had suffered sustained harassment and bullying because of his obesity, they were satisfied that he had been harassed because of his `disability`.
Indeed, obesity itself appears not to be a disability but if a person has a long-term impairment because of their obesity, which interferes with them carrying out their role, they could be protected by disability discrimination legislation.
I think the ruling, which is the first case of its kind in Northern Ireland, will divide some on `what is classed as a disability?` in terms of protection against unlawful disability discrimination.
Some would argue or perceive that obese workers cannot carry out their full role and cannot contribute to do the job they are paid to do. It is interesting to see a recent newspaper article, which claims that a recent survey of 1,000 firms showed that half of employers are less likely to recruit obese people. Really? So, in context, what those 500 firms are saying is that they would most likely disregard a really good candidate, who matches the job spec because the candidate is `obese`!
I suppose this comes with the `perception` that those people are lazy and will be unable to carry out their roles because of their weight however, are they not being discriminatory on this ground alone on refusing to seriously consider a candidate because they are obese by the preconceptions they have with this?
I think that there is a general fear amongst employers that there will be potential costs associated to accommodate any side effects of obese or overweight employees, together with concern that they could be deemed to be discriminatory if they do not put things in place to help the needs of the employee with their condition.
However, when considering whether obesity could qualify as a disability, the ECJ’s ruling should be taken into account in assessing the actual effect the disability is having. Does the condition constitute a limitation on the employee in the effectiveness in carrying out their role, compared with their colleagues doing the same role?
I will leave you with this point, which I find somewhat confusing. If there are two colleagues, both the same weight and both doing the same role, however, only one can perform his role to the required standard because of his weight and the side effects associated with it, only one would be classed as `disabled`; yet the other would not. Therefore, it would be unlawful disability discrimination if the employer allowed or knew that the worker was being harassed because of his weight and they suffer impairment because of it however, this would not apply to the other.
Confused? I am sure there will be more uncertainty for employers and Tribunal cases to follow.
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