Obesity and disability discrimination – time to update your business policy

23rd January 2015

Statistics published in 2014 by the Health and Social Care Information Centre showed a marked increase in the proportion of adults who were obese between 1993 and 2012. Among men figures rose from 13.2 per cent to 24.4 per cent, and the figure for women rose from 16.4 per cent to 25.1 per cent.

These statistics could be significant in light of the recent European Court of Justice (ECJ) ruling which concluded that severe obesity can fall within the definition of disability in equality law. This gives employees certain rights if treated unfairly as a result of their obesity.

Adam Pike, an employment lawyer in the dispute resolution team at Ansons Solicitors in Cannock, explains the changes in more detail and what you can do to prevent disability discrimination claims.

The ECJ confirmed that there is no free standing prohibition against discrimination on grounds of obesity, but concluded that severe obesity could be classed as a disability if the following factors apply:

  • the employee has a physical or mental impairment as a result of their obesity that results in reduced mobility or the onset of medical conditions. As such, preventing them from carrying out their work or causing discomfort when carrying out their duties; and
  • the effect is substantial and likely to be long-term.

This decision supports the conclusion reached by the UK’s Employment Appeal Tribunal in the case of Walker v Sita Information Networking Computing Limited UKEAT/009/12, which held that obesity does not of itself render a claimant disabled. However, the effects of obesity might make it more likely that an employee has certain impairments within the meaning of the equality legislation.

Following these developments, employers should be alert to the impact that obesity has on their workforce. It may be necessary to consider special allowances, known as reasonable adjustments, for certain employees who have obesity related medical conditions such as diabetes, heart disease or mobility problems.

Failing to address these issues could result in employees bringing a claim for unfair dismissal or disability discrimination in the employment tribunal. This could be costly for your business as compensation for discrimination is uncapped. Getting specialist advice from an employment solicitor on your business’ disability procedures and protocol can help prevent this.

What are the penalties for failing to comply with disability discrimination laws?

Businesses have a duty to make reasonable adjustments to premises or working practices where a disabled job applicant or employee is placed at a substantial disadvantage. Failing to comply with this duty is a form of disability discrimination. There is no limit to the amount of compensation that can be awarded for a successful disability discrimination claim.

When does the duty to make reasonable adjustments arise?

The duty can arise in three circumstances:

  • where a provision, criterion or practice, for example the manner in which a recruitment process is carried out, puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled;
  • where a physical feature, such as accessibility, puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled; or
  • where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with individuals who are not disabled. An auxiliary aid is something which provides support or assistance to a disabled person. For example, a specialist piece of equipment such as an adapted keyboard or text to speech software.

What is a substantial disadvantage?

Discrimination legislation describes “substantial” as “more than minor or trivial”. It is a relatively low threshold and, therefore, an employment tribunal is likely to find it easy to conclude that a claimant suffered a substantial disadvantage. Whether an employee is placed at a substantial disadvantage depends on the individual facts of the situation.

Taking steps to identify disability

A business is not expected to make reasonable adjustments if it does not know, or could not reasonably be expected to know, that the disabled person has a disability and is likely to be placed at a substantial disadvantage.

You should take reasonable steps to put a system in place to help your business identify whether individuals are disabled and at a substantial disadvantage. If your business should have known about a disability, such as from an occupational health assessment, then the duty to make reasonable adjustments will arise.

Our expert employment lawyers in Staffordshire can help ensure your business is up-to-date on its policy and procedures to help avoid such issues.

What types of adjustments may a business have to make?

The reasonable adjustments businesses are required to make depends on the facts of the individual situation. Examples include:

  • making adjustments to premises. For example, widening a doorway or providing a ramp;
  • providing information in accessible formats. For instance, producing instructions and manuals in Braille or on audio tape;
  • reinstatement, such as reinstating an employee who resigned while depressed;
  • transferring a disabled employee to a new role, such as moving them to fill an existing vacancy; or
  • altering the disabled person’s hours of working or training. For example, permitting part-time working or different working hours to avoid the need to travel in the rush hour.

By following these guidelines your business will have the best chance of avoiding any disputes. However, should you find yourself facing or considering a claim for disability discrimination, we advise taking advice from one of our dispute resolution lawyers as soon as possible.

For further advice about your disability policy and procedures or disability discrimination claims, please contact Adam Pike in the dispute resolution team, on 01543 431 197 or email Ansons Solicitors has offices in Cannock and Lichfield, Staffordshire.