Disabled - or just fat? The Employer's dilemma...

With obesity levels in the UK topping the 20% mark, making us the fattest nation in Europe, employers are now facing the possibility of employees claiming that their obesity amounts to a disability, and that reasonable adjustments should therefore be made.

Before you scream: “Don’t be ridiculous, the adjustment needed is to lose weight!”, consider the recent decision of the Employment Appeals Tribunal (EAT) in the case of Mr Walker, who worked for an IT company.

Mr Walker weighed 21.5 stones, and suffered from a variety of medical problems including asthma, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, anxiety and depression. He brought a claim of disability discrimination against his employer.

The original tribunal held that he was not disabled because none of his problems could be attributed to any pathological or mental cause. But the EAT overturned that decision and held that the correct approach was to consider whether Mr Walker suffered from a long-term (12 months or more) physical or mental impairment, regardless of what the cause of that impairment might be. It was the effect on his ability to carry out day to day tasks that mattered.

The EAT suggested that if a person were capable of losing weight and therefore alleviating the impairments within a 12 month period, then they would not be regarded as disabled. But in Mr Walker’s case they concluded that his various impairments did meet the definition of a disability and therefore found in his favour.

What does this mean for employers?

It means that when assessing whether or not an employee may be disabled and thus protected by legislation, you should seek to establish the following facts:

1. Whether the individual suffers from a physical and/or mental impairment
2. What the underlying cause may be of the impairment
3. Whether that underlying cause is likely to last for more or less than 12 months (if less, then perhaps the impairment will disappear within a similar timescale)
4. Whether the impairment itself is therefore likely to last for more or less than 12 months.

In assessing these points, a specialist medical opinion, perhaps from an Occupational Health Practitioner, should be sought.

If your conclusion is that the person is suffering from an impairment that is likely to last for more than 12 months, they meet the definition of a disability and are protected from discrimination. You will also have to consider making reasonable adjustments to enable them to carry on working.

The fact that an employee is obese doesn’t necessarily mean that they are disabled, but you should not discount the possibility altogether. Notwithstanding that in most cases obesity is arguably the result of lifestyle choices, the fact remains that the medical conditions flowing from obesity may amount to a disability.

It used to be said that fat was “a feminist issue”. Now, it may be a legal issue too.