In July the Advocate General of the Court of Justice of the European Union gave his opinion in the case of Kaltoft that severe or morbid obesity might constitute a disability under the Equal Treatment Framework Directive. This will be the case if a worker’s obesity hinders their full and effective participation in professional life. Shockingly, data suggests that 25% of the UK adult population is now obese. Given how widespread the problem of obesity is, the prospect that in certain cases obesity will be seen as a disability raises various questions, including what steps employers might take to ensure that its workforce is healthy.

Whether obesity is a disability raises a number of issues. Firstly, there is no obvious lay understanding of what obesity is (other than being ‘overweight’), and any assessment of obesity by an employer will therefore be largely subjective. The Advocate General in Kaltoft suggested that only severe or morbid obesity (i.e. a Body Mass Index in excess of 40) would create the limitations such as problems in mobility, endurance and mood that would amount to a disability for the purposes of the Directive. However, it will be very difficult for a concerned employer to meaningfully gauge the severity of an employee’s condition, and therefore whether they will be protected by disability discrimination legislation (including in relation to making reasonable adjustments).

Secondly, there is a certain amount of stigma attached to obesity, in many cases based on the assumption that what people eat and how much exercise they take is under their control. This approach to ‘self-induced’ sickness is reflected in the Equal Treatment Directive itself, which specifically excludes alcoholism and drug addiction. The Advocate General’s comment on this point was that whilst alcoholism and addiction to psychotropic substances are diseases, this doesn’t mean that an employer would be required to tolerate an employee’s breach of his contractual obligations (i.e. turning up to work drunk).

For both of the above reasons, any conversation regarding an individual’s weight and its potential or actual impact on their ability to do their job is likely to be difficult. However, in many cases this is a conversation that is well worth having. As well as potentially being a disability in and of itself, being significantly overweight is linked to a number of other health problems including diabetes and heart disease. These associated conditions are very likely to constitute a disability, and will in most cases lead to sickness absence and reduced productivity at work.

Of course the fact that healthy individuals make better employees is not news and many employers offer benefits which aim to support employee wellbeing, the most common being private medical insurance, gym membership and health screening. However, a survey in 2013 has shown that whilst 27% of employers surveyed offered private medical insurance, only 12% of employers offered gym membership. Whilst both schemes demonstrate a commitment to employee wellbeing, if the adage that prevention is better than cure holds true then employers may want to think about putting in place schemes which incentivise wellbeing such as gym membership, cycle to work schemes and wellbeing weeks (including nutritional advice).

The issue of obesity in the workplace is therefore a difficult issue, and one which should be sensitively handled but not ignored. Given the long term impact of obesity on an individual’s health and their attendance and productivity at work, it is very much in the interests of employers to address the issue head on and, where possible, incentivise and support employees in leading healthier and more active lives

Posted on 14/11/2014 in Legal Updates

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