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disability discrimination discrimination discrimination issues

is obesity a disability in the context of discrimination?

obesity

It was a mistake, the Employment Appeal Tribunal held in Walker v Sita Information Networking Computing Ltd, for an Employment Tribunal to say that a claimant was not disabled because there was no identifiable or recognisable pathological or mental cause for his “constellation of symptoms”. The Tribunal had been wrong to concentrate on the fact that there was no physical or mental cause for the impairments suffered – the point to look at was what effect the impairments had on everyday life, except where there was any doubt as to the genuineness of the symptoms.

In this case, the claimant suffered from “functional overlay” accentuated by his obesity – he weighed around 21.5 stones (136.5kg). EAT President Langstaff considered that obesity was not a disability of itself, but it could make it more likely that a claimant would be disabled. On the other hand, because obesity can be reversed by a determined effort to lose weight, it could be that any impairments caused by obesity could be reversed within 12 months – thus meaning that the claimant would not be disabled within the statutory definition, which is:

Section 6 Disability
(1)A person (P) has a disability if-

  • – (a)P has a physical or mental impairment, and
  • – (b)the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

As confirmed in the government’s guidance to the definition of disability and corresponding Equality Act Guidance

"substantial" is more than minor or trivial – e.g. it takes much longer than it usually would to complete a daily task like getting dressed [and] "long-term" means [likely to last] 12 months or more – e.g. a breathing condition that develops as a result of a lung infection.

So what is "functional overlay". In this case what was described as an abbreviated list included asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains. Any reasonable person would regard such a combination as causing a great deal of pain and inconvenience and, in the normal sense of the word (which is what matters in this context) substantial impairment. It does not matter whether the impairment is physical or mental or a combination of the two. Equally it does not matter what has caused the impairment.

Mr Justice Langstaff made it clear that obesity does not of itself and without more render a person disabled. However:

…it may make it more likely that someone is disabled. Therefore on an evidential basis it may permit a Tribunal more readily to conclude that the individual before them does indeed suffer from an impairment or, for that matter, a condition such as diabetes, if that diabetes is such as to have a substantial effect upon normal day to day activities. It may also be relevant evidentially to ask whether the obesity might affect the length of time for which any impairment was to be suffered. Thus in the case of someone determined to lose weight, in respect of whom it could confidently be predicted that they would reduce their weight to normal levels well within a year, with the consequent result that they no longer suffered from impairments which could confidently be ascribed to the weight itself, this could have the result that there was no disability for those impairments would not last for over 12 months.

The judge went on to cite with approval from the Guidance that liver disease resulting from alcohol dependency is an impairment whereas alcoholism is not. The distinction is fine but nonetheless very important.

The result in this case was that the decision of the Employment Judge was overturned and mr Walker was indeed found to be disabled.

Although not directly covered in the judgment, it might be that a strict diet could have resulted in Mr Walker ceasing to be obese within 12 months. However, that is not the point, even if the corresponding effect on him would be to relieve him of many of his symptoms and afflictions. Since this point was expressly considered (see above) it must be assumed that a finding of disability can be made regardless of this possibility.

Martin Malone

By Martin Malone

I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department.
I maintain this website so if you have any suggestions, criticisms or recommendations please email me at martinmalone@canter-law.co.uk.
Outside work my interests include national hunt horse racing, France and French wine and current affairs. I also design and maintain websites.