The Impact of Obesity on Registered Providers

Like any employer, Registered Providers have a duty to make reasonable adjustments for employees with disabilities. There is recent case law to suggest that if obesity impacts on an employee's ability to work, they may now be regarded as disabled.

Although there is no general principle in EU law which prohibits discrimination on the ground of obesity, there are conditions under which obesity can amount to a disability. In Kaltoft v Municipality of Billund (Case C-354/13) the European Court of Justice (the ECJ) decided that obesity could amount to a disability if it causes "a limitation resulting in long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers".

The ECJ held that the cause of obesity is irrelevant when deciding whether it amounts to a disability and employers should focus on whether the obesity hinders full and effective participation in a particular individual's working life. Registered providers should consider:

• whether the participation of any of these members of staff are hindered by obesity or;
• whether the obesity results in an impairment, reduced mobility or the onset of related medical conditions.

The Industrial Tribunal in Northern Ireland relied on Kaltoft in the recent case of Bickerstaff v Butcher (2015), deciding that an obese employee had been harassed for a reason relating to disability. The claimant had been subjected to insults relating to his obesity almost on a daily basis; such as comments saying that he was "so fat he could hardly walk" and that he was "so fat he would hardly feel a knife being stuck into him". The unanimous decision of the tribunal was that the claimant was disabled and that his claim of harassment against the respondent was upheld. This was because the claimant's obesity resulted in a significant impairment to his working life, including reduced mobility. His obesity had also caused the medical condition of gout. It was held that his long-term physical impairments impacted on his working life to such as extent that he was disabled.

If there is an impairment of the obese worker's participation, Registered Providers should consider what reasonable adjustments could be made within the workplace. Such adjustments should alleviate the effect the obesity has on the staff member's ability to perform their particular role. Acceptable adjustments will vary depending on the type of job, workplace and the size of the employer. Reasonable adjustments may include adjusting facilities within the workplace, providing parking so that the member of staff can drive to work, providing a larger desk or more frequent rest breaks.

If it is determined that obesity is classified as a disability for a particular member of staff, it will mean that they have rights under the Equality Act, in which case they will be protected from discrimination on the grounds of disability. Therefore steps should be taken to ensure that discrimination towards obese members of staff does not occur within the workplace.

Registered providers should consider amending the relevant policies and procedures to deal with this issue, which may include providing training to all staff members. You would also need to review your approach towards obese job applicants, and take steps within your recruitment processes to ensure that these job applicants do not suffer from discrimination or harassment due to their obesity.

If you would like to discuss further, please contact Chris Maddock on 0191 211 7919 or [email protected] or Emily Linsdell on 0191 211 7996 or [email protected]