Should obese employees be protected in the workplace? What has the ECJ said?

The European Court of Justice (“ECJ”) has this morning handed down its decision on whether an employee in Denmark was protected under European equality laws from discrimination on grounds of obesity. The ECJ has held:

• there is no general stand-alone protection against discrimination on grounds of obesity in European law.
• however, the degree of an individual’s obesity, together with its impact on an individual’s working life may well be important in bringing that individual within the existing protection against discrimination on grounds of a disability.
• the cause of the obesity, including the fact that it may be self-inflicted, is irrelevant. It is the impact of the obesity which is important in determining whether disability discrimination protection applies.

Whilst there may be no specific obligation in law for employers to tackle obesity (or indeed other health issues) amongst their staff, in light of the UK’s reported obesity crisis there is an increasing push for employers to sit up and help. What steps should employers be doing?

The ECJ decision is consistent with existing UK law and statutory guidance, however, it has not provided the clarity that employers and employees were no doubt after. The Employment Appeal Tribunal (“EAT”) has previously held that, whilst “obesity” itself will not automatically render a person disabled for the purposes of UK disability discrimination laws, the effect of that obesity may well do so.

This decision brings the impact of obesity in the workplace sharply into the spotlight, particularly at a time when the state of obesity in the UK is very much a subject of media attention and the Government is set to launch the new Fit for Work Service.

• The ECJ made no reference to the level of an individual’s Body Mass Index (BMI) in assessing whether their obesity renders them disabled. It had been previously recommended by the Advocate General that a BMI of over 40 would be likely to mean that an individual was disabled. The ECJ held that where an individual’s weight hinders their participation in professional life on a long-term basis, then they are likely to fall within the meaning of “disability”. By failing to provide further clarity, the ECJ decision leaves open the possibility of further confusion for employers and employees and each case will need to be assessed on its own merit.
• Where an obese employee does fall within the disability discrimination protection, employers should:
  • take care not to treat an obese employee’s circumstances as having less merit than other disabled employees, based on the belief (rightly or wrongly) that they are the employee’s fault.
  • consider whether or not any reasonable adjustments should be made. These might include employers having to provide bigger chairs and desks, car parking spaces near the front door and duties involving less mobility.
  • be aware that these potential adjustments all bring with them the threat of associated employee relations issues from other members of the workforce who in turn feel they are being unfairly treated. The risk of harassment and bullying of an obese employee may be high and could well include managers who should receive guidance on the issues they should have under consideration when dealing with an obese worker and handling any related issues.
  • take care not to discriminate in any recruitment, promotion, sickness absence or dismissal process.
• Employers should also be mindful of how this decision impacts on other “conditions” such as anorexia and bulimia which may equally have effects that impact on an employee’s working life and bring them within our disability discrimination protection.

And is an employer under any obligation to assist an obese employee in losing weight?

Whilst there may be no specific obligation in law for employers to tackle obesity (or indeed other health issues) amongst their staff, in light of the UK’s reported obesity crisis there is an increasing push for employers to sit up and help.

Indeed, against the backdrop of the new Fit for Work Service which aims to speed an employee’s return to work and which is due to be launched in the New Year, back in September the Head of the NHS called for tax incentives for employers to keep staff healthy (see here). And indeed, from 1 January 2015, employers will now be able to benefit from a new tax exemption when they fund recommended medical treatments of up to £500 per employee per year. Whilst this expenditure must be aimed at helping an employee return to work after a period of absence due to injury or ill health, this could arguably encompass steps to tackle obesity which have been recommended by a qualifying health care professional. Whilst there is no obligation on an employer to fund the treatment, the benefits of getting an individual back into work may well increase the pressure on an employer to accept recommendations in this respect.