Fat is a legal issue

by Laurie Anstis on November 10, 2010

There has been a lot of talk recently about obesity in the workplace.

In October, a report in the US suggested that obesity cost business $73 billion, largely due to lost productivity.

In the UK, Blackpool Transport’s suspension of two bus drivers, apparently on health & safety grounds) has lead to the threat of industrial action, and an installer took voluntary redundancy after his weight was assessed as putting himself and colleagues at risk.

These reports need to be taken with a pinch of low sodium salt.  The US report was funded in part by Allergan (producers of the LAP-BAND® Adjustable Gastric Banding System) and the UK reports don’t give any details of the assessments that were made, but as lawyers we are sometimes asked by clients to advise on whether someone’s obesity could count as a disability. A disability would trigger a duty on the employer to make “reasonable adjustments”, and entitle the individual to special protection against harassment and dismissal under the Equality Act 2010.

Obesity as a disability

In assessing whether obesity (or any other condition) is a disability, the question of what caused the obesity is irrelevant.  It does not matter whether the obesity is a consequence of a recognised medical condition or simply the result of an unhealthy lifestyle. Questions about whether someone is obese as a result of lifestyle choices that they have made have no place in assessing whether or not the obesity is a disability (see, on the question of alcoholism and depression, Power –v- Panasonic (doc link)).

The definition of disability contained in the Equality Act (section 6(1)) says that a person has a disability if (i) they have a physical or mental impairment, and (ii) “the impairment has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”.

In practice, in obesity cases the focus is usually on the question of whether the obesity has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities. In Liggins –v- Thameslink Rail the Employment Appeal Tribunal side-stepped the question of whether obesity (without some underlying medical condition) could count as a physical impairment. In most cases, it is likely that the effects will  be long-term (meaning that they have lasted for, or are likely to last for at least 12 months).

The Equality Act has abolished the previous list of “capacities” and guidance that applied in assessing normal day-to-day activities, preferring not to put any gloss on the meaning of “day-to-day” activities.  However, the former list and guidance will no doubt continue to be influential when tribunals come to make their assessment.  One of the listed capacities was “mobility”, and the former guidance suggested that someone who had “difficulty walking other than at a slow pace”, “difficulty in going up and down stairs”, or “difficulty in using one or more forms of public transport” ought to be regarded as disabled, but they should not be regarded as being disabled if the only difficulty was “experiencing some tiredness or minor discomfort as a result of walking unaided for … one mile”.

This focus on what the effects of the condition are means that it will be rare that someone who is moderately overweight will be considered to be disabled.  The obesity has to be so serious that it affects their normal day-to-day activities, and this will usually only be the case when somebody is extremely overweight (or underweight, since the same principles could apply to someone who was extremely underweight).

Consequences

Where someone is so obese as to qualify as disabled, their employer is under an obligation to make “reasonable adjustments” to their role.  This could include reallocating their duties (or even finding them a completely different job) and adapting procedures and equipment.  As a general rule, making “reasonable adjustments” ought not to require compromises in health and safety standards (see, for instance, Lane –v- Farmiloe (pdf link)), but the tribunal will want to be convinced that there are real health and safety risks rather than simply assumptions that have been made by managers. If the health and safety risks cannot be mitigated by changes in procedures or equipment, then the focus will be on whether the employee’s duties could be changed, or whether they could be moved to a different job.

If an employee is disabled, they will also be entitled to protection against harassment on the basis of their disability.  Where someone’s obesity amounts to a disability, teasing them about their weight will amount to unlawful harassment.

If the employee is disabled, then they cannot be dismissed on the basis of that disability, or for any reason relating to this disability unless there are no effective reasonable adjustments that can be made and the dismissal is justified.  Dismissal must be the last resort where there are no effective reasonable adjustments that can be made.

I don’t suppose we will hear anything more of the Blackpool cases, but it cannot be long before questions related to obesity come to the Employment Appeal Tribunal.

[Update 21 March 2013 – it has taken a while, but we now do have an Employment Appeal Tribunal case on the question of obesity as a disability. In Walker v Sita Information Networking, Langstaff P addressed the question of obesity in the context of a number of complex medical conditions. The judgment should be read in full, but notably Langstaff P said (at para 18): “though I do not accept that obesity renders a person disabled of itself, it may make it more likely that someone is disabled“.]

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