Brussels backs Brits on Fatties

I’ve blogged before about the nonsense that tabloid (and sometimes more “reputable”) newspapers publish about employment law – for example here and here. So it didn’t surprise me when they cottoned on to the “obesity as a disability” story, particularly as it also allowed them to indulge in their other favourite pastime of bashing “Europe”. The Daily Star took the story to new heights of fantasy with this piece.

Of course, it’s no wonder that many small businesses have concerns about employment law when they read stories like this one. And it provides fuel for those with a political axe to grind. So let’s look at the facts in this case, rather than the fiction.

The reports reflect an opinion expressed by the Advocate General of the EU. Although this is merely an expert legal opinion, his view is usually – but not always – adopted by the European court when it makes a judgment. Updated 18 December 2014 – the European Court decision, which can be found here, does, as expected, broadly follow this, although it removes the reference to Body Mass Index below.

What the Advocate General said was that anyone who is “morbidly obese” (with a Body Mass Index of 40 or more) is not disabled. However there may be certain circumstances where the consequences of this obesity are that the person cannot fully participate in work. In such a situation the individual might be (but isn’t automatically) disabled and therefore governed by equality legislation.

This viewpoint is consistent with current UK case law, which states that obesity is not in itself a disability but it may lead people to suffer from conditions which are a disability.

In this respect, it places obesity on a similar footing to drug or alcohol addiction. Simply being dependent on drugs or alcohol is not a disability. But if someone develops a condition which is a disability (for example becoming HIV positive) as a consequence of their addiction they will be classed as disabled under the Equality Act.

Even if they are disabled, your duty as an employer is to make “reasonable adjustments”. What is reasonable for a small company in rented accommodation is vastly different to what is reasonable in a large employer with their own premises. You’re not necessarily obliged to strengthen floors, provide extra wide chairs or any of the other things that reports have mentioned.

So, as always, don’t panic when you read stories like this. Remember that newspapers are interested in juicy headlines, not the cold facts or the detail.

(Thanks are due to Equality & Diversity consultant Anne Tynan, who tweeted about the Daily Star story and Employment Barrister Daniel Barnett whose Employment Law bulletins provide a readable and accurate summary of the Advocate General’s opinion).

(I’m fully aware that the European Court is based in Strasbourg. But the alliterative headline is a tabloid staple, accurate or not)

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