By Liam Kerr, Senior Associate at law firm CMS
The impact of the decision of a Danish child minder to take his employer to court (Kaltoft v The Ministry of Billund) over claims he was a victim of disability discrimination is being felt here in Scotland. Mr Kaltoft, who weighed 25 stone when he was made redundant from his nursery job, claimed that he was targeted because of his obesity which, he argued, made him a disabled person.
The European Court of Justice (ECJ) ruled that in some circumstances obesity may amount to a disability if its effects are sufficiently serious, of a long-term nature and prevent the “full and effective participation of that person in professional life on an equal basis with other workers”. Examples of impairments cited by the ECJ included reduced mobility and medical conditions which caused discomfort or prevented an individual from carrying out their work in the same way as other staff members.
This ECJ decision chimes with the UK employment tribunal view that it is the effect of being overweight, and long-term adverse effect it has on an individual’s ability to carry out normal day-to-day activities, that matters.
While many would attribute obesity to lifestyle choice, the key question is not how the disability arises, but whether the employee is a disabled person or not. If so, employers will be bound by the same duties regarding discrimination or harassment which relate to all other disabled employees. Furthermore, employers must make ‘reasonable adjustments’ to assist the disabled worker to do their work. This could include providing them with larger office furniture, assigning them a car parking space nearer the office entrance, reassigning them to a desk to the ground floor as well as allowing more breaks away from the desk for example.
Here in Scotland this changing regime presents a real challenge to the North Sea oil and gas sector where the average weight of the male workforce has risen by three stones in the last ten years. Following a Civil Aviation Authority review of helicopter safety, from April 2015 operators may not carry passengers offshore whose body size is incompatible with push out window emergency exit size. While this ruling may help oil firms employing offshore staff to justifiably steer around the issue, those workers who become obese and can classify themselves as disabled may need to be considered for a more suitable onshore role for example.
As the rise in obesity becomes a major issue for society, employers would benefit from taking proactive measures. At the recruitment stage, a robust paper trail is essential with clear evidence of why a particular candidate, especially one who qualifies as obese, was not recruited in case it is later challenged as a disability discrimination issue.
Employers might consider a company-wide health and well-being programme aimed at reducing obesity levels or perhaps more focused support to those who have become significantly overweight, before their condition has the potential to render them disabled.
With an increase in obesity levels set to continue, it will require innovative and non-judgemental thinking to ensure this does not become a future crisis for employers.