Under the Equality Act 2010 disability is a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on one’s ability to carry out normal daily activities. According to government 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 12 months or more – e.g. a breathing condition that develops as a result of a lung infection.
What is potentially a landmark case was heard by the European Court on 12 June and the decision when delivered could have ramifications that require significant adjustments to working arrangements. Danish child minder Karsten Kaltoft weighs 25 stone. He was sacked by his local authority because he could not perform his duties. As a result of his size he is unable to tie children’s shoelaces.
Of course, the main dilemma here is whether the condition is regarded as self-inflicted or caused by, say, a genetic predisposition. Medical evidence in this regard is likely to prove to to be very contentious. And what of conditions which might have been caused or contributed to by obesity, e.g. diabetes? In Walker v Sita (2013) the Employment Appeal Tribunal noted that 21.5 stone Mr Walker suffered from 16 medical conditions which were compounded by his obesity. The employment tribunal found that he was not disabled since there was not a physical or organic cause of his conditions other than his obesity. The EAT disagreed and held that he was disabled on the basis that his physical and mental impairments were genuine and their cause was irrelevant. However it was noted that obesity in itself did not render him disabled. If the European Court decision goes in favour of Mr Kaltoft such distinctions will no longer matter.
Changes that may have to be implemented include special seating, access to the workplace and the location of car parking places. Further, employees will not be able to be dismissed merely because they are overweight.
Guardian journalist Tanya Gold says that obesity is not a disability and to label it otherwise would be “a monumental act of denial”. Mirror journalist Carole Malone agrees saying that “Just when you think the European courts can’t be any more meddlesome or stupid, they show us they can”. She points out that Mr Kaltoft “literally wasn’t ‘fit’ to do his job”.
On the other hand the US Equal Employment Opportunities Commission has already classified obesity as a disability and several recent cases have resulted in successful claims. In Cook v State of Rhode Island a job applicant was 4ft. 4in. and weighed 320lbs. She was turned down for a job in a secure institution because it was felt that she would be unable to evacuate patients in an emergency, notwithstanding that she had passed a pre-employment physical exam. She was awarded compensation of $100,000. In EEOC v Texas Bus Lines 5ft. 7in. Arabella Manzuel weighed 345lbs and was offered employment as a bus driver. She was classified as morbidly obese. She was sent for a medical examination which she failed. The doctor said that she had difficulty getting out of her seat in the waiting area and “waddled” slowly to the examining room. As a result her job offer was withdrawn. The employer was held to have impermissibly discriminated against her based on her “perceived disability”.