The Equality Act 2010 details 9 categories of ‘protected characteristics’. These include sex, race, age, sexual orientation and, the subject of this brief update, disability. An employer who subjects an employee who has a protected characteristic to a detriment (e.g. dismisses them or treats them less favourably at work than others) may be liable to a discrimination claim, and these are the cases that attract the highest awards at tribunal.
It is not terribly good news then that a 10th category of discrimination is almost certainly on the cards following Kaltoft v Municipality of Billund, where the Advocate General said that in “cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability.”
He referred to a Body Mass Index (BMI) of 40 or more, which is classified as ‘morbidly obese’.
Practically what does this mean for employers?
If we’re dealing with cases of poor performance or attendance and the employee concerned is or might be ‘morbidly obese’ we need to carefully assess whether the obesity has a real impact on their ability to participate in work, and if so, we ought to regard them as being ‘disabled’. This means that special duties are triggered for the employer:
- Not to subject, or allow others to subject the individual to detriment (which includes dismissal, less favourable treatment, bullying & harassment etc.)
- Consider reasonable adjustments to the individual’s job or premises etc. where the disability is hindering the individual’s performance in their role
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