10th April 2013

Who is the fat-ist in your business?

The Employment Appeal Tribunal (EAT) recently gave some further guidance as to how obesity should be treated for the purposes of disability discrimination.  In Walker v Sita Information Networking Computing Limited, the EAT held that an employment tribunal had erred in finding that a 21-stone employee was not disabled for the purposes of discrimination legislation.

What guidance was given by the EAT?

When considering the issue of whether obesity can amount to a qualifying disability, the first question which should be asked is whether or not the individual has an impairment.  The second question which should be asked is whether or not the condition is a physical or mental impairment.  The EAT stated that the question of “cause” of the disability should only be relevant when a tribunal considers that a disability has no “recognised cause”.  Importantly, despite finding that this employee suffered from a qualifying disability, the EAT refused to find that obesity is a qualifying disability in its own right.

What does this mean for employees?

If, as an employee, your ability to carry out your duties and responsibilities is affected as a result of your weight, then your employer may be required to make reasonable adjustments to your job or work place to accommodate your condition.  Such adjustments could include providing you with an auxiliary aid.

Additionally, if your condition is so serious that it amounts to a disability, you will also be protected from being subject to any unwanted conduct related to your weight which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

What does this mean for employers?

If an employee’s weight is so significant that it has an effect on that employee’s ability to do their job, you should consider whether it is possible to make reasonable adjustments to that role.  Employers should remember that it is lawful for them to refuse to make such adjustments and an employer is entitled to take into account such factors as the practicability of the step, the extent of the employer’s financial or other resources and the extent of any disruption caused when reaching this decision to refuse to make adjustments.

An employer should also ensure that, if it becomes aware of any unwanted conduct which is related to an employee’s weight, such conduct is dealt with by way of the disciplinary procedures and any employees who are involved in such behaviour should be dealt with accordingly on the grounds of misconduct.

Simon Allison
Partner – Employment Law

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