Obesity CAN be a Disability… PROBABLY
The Advocate General (AG) has given his opinion in the Danish case of Kaltoft that we reported last month in which the European Court of Justice (ECJ) have been asked to rule on whether Obesity is a Disability.
In short, the AG has essentially said that ‘it probably can’.
He stated that whilst obesity itself is not a disability, that “severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood, that amount to a ‘disability’”.
He went on to say that if the severe obesity “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.”.
So put simply, anyone with a BMI above 40 may be disabled if they can’t do their job because of their weight.
What does severe obesity mean for employers?
It means that employers may have to consider making reasonable adjustments for severely obese employees, but as with other ‘reasonable adjustments’, they do not need to do anything that would be disproportionate to their business and if the employee is incompetent or incapable of doing their job due to a factor that has nothing at all to do with their weight, then ‘reasonable adjustments’ don’t come into it.
The ECJ have yet to rule, but they usually agree with the AG.
If you are so inclined, you can read the AG’s opinion in full.
Health and Work Service
We have previously reported that the Government will no longer compensate employers for SSP from April 2015 and so to offset this, and as part of the Government’s long-term economic plan to help employees and employers manage sickness absence, from late 2014 the Health and Work Service will be phased in.
The Health and Work Service are essentially Government funded Occupational Health practitioners. Employees who are off sick for 4 weeks will automatically be referred to them by their GP.
The Service will provide advice, support and assistance to employees and employers with a view to enabling employees to return to work. Their assessments will be done online or over the phone; and there will be a tax break for employers who fund medical treatment (up to £500) for their employee if it is recommended by the Service, such as counselling for an employee who is signed off with stress.
Read here last updates of this case.
If you have faced discrimination in the workplace, please contact Julia Furley on 0207 388 1658 or at jfurley@jfhlaw.co.uk to discuss your options.
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Image: Reclining Woman by Botero, 169cm x 361cm x 141cm, Bronze – 2003
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
