Employers could face extra costs over obesity ruling

An opinion by the Attorney General of the European Court of Justice may have far-reaching consequences for many employers, the Yorkshire law firm said.

These could include providing car parking spaces nearer the workplace entrance, adjusting duties to remove the more physical aspects of a role, and considering whether overweight individuals need to be located on the ground floor in case of lift failures, as well as transporting them safely out of the building in the event of fire or injury. 

In a Danish case considered by the Attorney General, a public sector employee argued that he was dismissed from his role as a child-minder which he had held for 15 years because of his weight. He weighed 25 stone and his size meant he could not perform many of the duties required, including tying children’s shoelaces.

The employee argued that discrimination on grounds of obesity was unlawful and that obesity amounted to a disability. Although the court is not obliged to follow the Attorney General’s opinion, it usually does.

The Attorney General has indicated although there is no free standing right to claim discrimination, in cases of morbid obesity the effect on mobility, endurance and mood may render the employee disabled. If so, employers have an obligation to make reasonable adjustments to assist them.  

Angela Gorton, director in employment law at Lupton Fawcett Denison Till, said that this decision could have far-reaching ramifications. Nearly two-thirds of the adult population is currently considered to be overweight or obese and the figure is rising.

“Weight is one [medical impairment] that can vary up and down and thus is under the employee’s control. Whether or not they are disabled very much depends on the individual’s willingness and willpower to try to lose weight and many employers will feel bitter that they have to incur additional costs and responsibilities when the issue is potentially within the employee’s control.”

The Equality Act provides for the protection of disabled employees. In the UK, obesity has not been considered to amount to a disability unless it resulted in a consequential physical impairment such as diabetes.