Employers across Europe are bracing themselves as the European Court of Justice is set to rule on a test case which could oblige employers to treat morbid obesity as a disability, or risk facing huge compensation pay outs.
The European Court of Justice will make its decision on whether to class morbid obesity as a disability based on the case of a male child-minder from Denmark, who claims he was dismissed for being obese. The final ruling, expected to be announced over the weekend, could set a far-reaching precedent across the whole of the EU. The development comes as Advocate General Jääskinen from Finland confirmed yesterday that morbid obesity (a BMI of over 40) could seriously hinder an individual’s ability to participate in the workplace, which could amount to a “disability” for the purposes of the Directive.
The Equal Treatment in Employment Directive sets the framework across Europe and is implemented in the UK by way of the Equality Act 2010, making the outcome of the EU ruling relevant to all UK employers. When most people think of discriminatory behaviour, they think of discrimination based on age, disability, race, sex and sexual orientation. However, ‘fat shaming’ – or discrimination against those who are overweight – could be recognised by law as a legitimate form of discrimination, and failure to recognise this could land both employers and employees in hot water.
In fact, recent research carried out by the Florida State University College of Medicine showed that ‘fat shaming’ is one of the most damaging types of discriminatory behaviour.
The main findings showed that discrimination based on age, weight, physical disability and appearance were associated with worse subjective health, greater disease burden, lower life satisfaction and greater loneliness.Under current law, claims for unfair dismissal are capped at 12 month’s salary, whereas compensation for discrimination claims is unlimited. This means that a change in the law to class morbid obesity as a disability would enable those employees with a BMI of 40 or over to make limitless compensation claims.
Danny Clarke, Occupational Health Manager at business support expert ELAS, comments on what the change in law might mean for UK employers: “In the UK, 64 per cent of adults are classed as being overweight or obese and over 1.52 million people in the UK are classed as morbidly obese. This indicates that any change in law in relation to this is a real issue that UK employers need to be aware of. “All forms of discrimination can have a negative impact on the wellbeing of employees, so it’s vital that bosses do everything they can to safeguard themselves by introducing the necessary policies and educating staff as much as possible in this area to ensure that they are not liable.
“The European Court’s decision on the Danish test case will be extremely important, as it will be binding across all member states. If an obese person is deemed disabled, the duty to make reasonable adjustments kicks in. So employers might find they are under a legal obligation to provide special desks and chairs, or provide duties which involve reduced walking or travelling. “The key is to make sure all people are treated as individuals and offered fair opportunities so that everyone feels valued. Different people bring different things to the table in any workplace and discriminating against certain groups is damaging to a company and its growth.”