As is widely known (and we referred to it in an earlier piece https://igloballaw.com/is-obesity-a-disability-by-law/ ) the question of whether obesity counts as a disability finally came before the European Court of Justice and just before Christmas it delivered its judgment.

And the judgment was ….. not automatically but sometimes.

Contrary to some headlines the judgment did not say that all obesity is disability. It said that some level of obesity can amount to a disability. Whether it does or not depends on the individual case. Disability may arise where there is a “limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one.”

In plain English, there may be a disability when the obesity is such that, in the long term, it stops the employee from doing his or her job on the same basis as other workers.

There is no definition of obesity. It is about whether the obesity in question impairs the performance. In the ECJ case, the employee was a Danish child minder employed by a local authority who was so obese he had to ask colleagues to tie the children’s shoelaces for him. This counted as a disability. Put even simpler, obesity is not a disability …. unless it actually is. And then it is.

Importantly, the ECJ made clear that the cause of the obesity (and therefore the fact that it was self-inflicted) was irrelevant.

It is arguable that this decision gives rise to no great change in the legal position, at least in the UK. While obesity of itself is not a disability it has long been recognised that it can give rise to conditions, such as diabetes, which can be a disability. Similarly, while alcoholism itself cannot be a disability, if it gives rise to depression, the depression can count as a disability. However, the decision does now clearly place on the employer the need to assess individual cases where the ruling might apply and to consider any reasonable adjustments that can be made to address hindrances or limitations linked to obesity.

Actions

As we said before it would be wise to ensure that the physical comfort and convenience of any obese employee is considered. Policies or attitudes (still prevalent in some firms) against recruiting obese people may need review before they give rise to a discrimination claim. Finally, employees should avoid banter at the expense of obese colleagues, which may amount to harassment.