A Weighty Issue

Howard Robson, Partner in our Employment Team here reviews a recent case considering obesity as a disability and whether employees have the right to bring a claim for weight related disability discrimination.

The case examined is Walker v SITA Information Network Computing Limited.

Is obesity recognised as a protected characteristic?

Currently our Equality legislation protects individuals who are treated less favourably or harassed due to one or more of nine “protected characteristics”, one of which is disability. Whilst obesity is not a recognised protected characteristic or usually considered to be a disability, the case we are reviewing here establishes that obesity related symptoms might impair an individual such that they are considered disabled for disability discrimination purposes and are therefore afforded additional protection in this regard.

What are the facts of this case?

Mr Walker, who weighed 21.5 stone, issued a disability discrimination claim against his employer and therefore had to establish that his condition satisfied the legal definition of a disability.  Mr Walker suffered from various health issues which affected his ability to do normal day to day activities. However, none of these were attributed to a specific pathological or mental cause. In particular, Mr Walker experienced pains in his head, abdomen, legs and feet, constant fatigue, poor concentration and lapses in memory as a result of his asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach complaints, anxiety and depression. As result of this an occupational specialist concluded that he suffered from “functional overlay”, compounded by his obesity.

Few medical conditions are automatically deemed to be a disability and therefore the first challenge a claimant issuing such a claim may face is establishing that their condition satisfies the legal definition of a disability – a physical or mental disability which has a long term, substantial and adverse effect on their ability to carry out normal, day to day activities.

The outcome from the Employment Tribunal

Mr Walker issued his case under the Disability Discrimination Act 1995, which has now been replaced by the Equality Act 2010 although the definition of disability remains the same.  The employment tribunal held that he was not disabled because they could not point to a physical or mental cause for his symptoms.

What did the Employment Appeal Tribunal (EAT) consider?

Mr Walker appealed to the EAT, who held that the employment tribunal had erred in law when considering the cause of Mr Walker’s symptoms as, instead, it should have looked at the effect that these symptoms had on his ability to do normal day to day activities. The EAT concluded that the employment tribunal should have asked whether Mr Walker had a physical or mental impairment, which had a substantial, long term and adverse impact on his ability to carry out normal, day to day activities.

The EAT went on to say that the cause of an impairment may well be important if there are doubts as to whether or not the claimant is actually suffering from the impairment at all. However, in Mr Walker’s case, there was no question as to the veracity of Mr Walker suffering from the symptoms in question. The EAT also pointed out that the cause of the impairment might be relevant in instances where the employment tribunal has to determine whether or not they are long term and therefore satisfy one of the limbs of the legal definition. For example, if the claimant were to suffer from these symptoms for less than twelve months because they opted to lose weight, they might not be disabled.

The EAT ruled that obesity itself does not amount to a disability and therefore someone who is overweight is not automatically deemed to be disabled. However, the EAT conceded that obesity may make an individual more likely to be disabled due to the health problems associated with being so. The EAT therefore overturned the employment tribunal’s decision and held that Mr Walker was disabled for the purposes of the Disability Discrimination Act 1995.

What should employers learn from this case?

Employers should therefore proceed with caution with overweight employees if they suffer from associated ill health as a result and bear in mind they might have a duty to make reasonable adjustments and ensure they are not treated less favourably than their colleagues.

This case has not changed the way that tribunals should approach disability discrimination but does provide useful guidance on a controversial issue. It also reflects the trend in the USA where they are also moving towards a position where obese people are protected from discrimination.

If you would like advice on discrimination claims, or would like some training on claims avoidance for your key staff, contact Howard or a member of the Employment Team on 02380 717717 or email howardrobson@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.