• Background Recent research* confirms that the UK has higher levels of obesity and overweight people than anywhere in Western Europe except for Iceland and Malta and that 67% of men and 57% of women are either overweight or obese.

    Obesity itself is not currently a disability under UK legislation but last week the European Court of Justice considered whether obesity can be a disability.

    The case involves proceedings brought by a Danish childminder, Mr Kaltoft, who alleges he was dismissed due to his obesity. His employer claimed that he was unable to perform his duties, for example, needing the help of a colleague to tie a child’s shoe-laces. The Danish court has asked for clarification from the European Court as to whether current European law can be interpreted to encompass obesity as a disability.

    Why is this important to UK employers?

    The outcome of the decision could prove significant for UK employers. If obesity is classified as a disability it will mean employers will need to think carefully about the potential impact of their practices or procedures and must avoid those that are obese being treated unfavourably and/or placed at a substantial disadvantage.

    The area where the primary change is likely to be seen is the obligation on an employer to make reasonable adjustments at work. This could, for example, include adjustments such as providing parking spaces closer to the workplace, providing a special desk and/or chairs or providing duties with reduced walking and/or travelling.

    It will be some weeks before the European Court publishes its decision in the Kaltoft case but employers and those dealing with employment related issues will no doubt await the outcome of this latest litigation with interest.

    Even if the decision is that obesity is not a disability, employers should still think carefully about how obese employees are treated as if an employee has the requisite period of service they may be able to bring other claims such as constructive unfair dismissal.

    What can you do?

    • Keep an eye out for the ruling. If obesity is found to be a disability it is likely that you will need to review your HR policies and procedures.
    • Take any allegations of bullying or harassment seriously and, as a minimum, investigate the allegations, ensuring that you keep everything clearly documented.
    • If harassment or bullying is taking place, those responsible should be reprimanded and all employees must be made aware that this behaviour will not be tolerated.
    • Ensure all staff are aware of the company’s equal opportunities and harassment policy, and if there is no policy, introduce one as soon as possible, making sure that employees are familiar with its content and comply with HR policy at all times.
    • Consider investing in training for both managers and employees so that they are aware of what constitutes discrimination and the potential claims that can result. Such claims can put employers to significant expense in terms of legal fees and damages to the wronged employee, as well as cause adverse publicity. It’s better to act now and take preventative action rather than waiting until a claim arrives in the post.

    *The Global Burden of Disease Study published in the Lancet Journal 29 May 2014.

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