The Industrial Tribunal decision in Neil Bickerstaff –and- Gerard Butcher (Case Ref: 92/14) has attracted considerable media attention over recent days and with good reason. The decision is the first reported Tribunal decision on the question of whether obesity is a disability.
The Belfast Tribunal said it was on the particular facts of this case. This decision is in line with the Court of Justice of the European Union (the "CJEU") decision in the case of Karsten Kaltoft –v- the Municipality of Billund (Case – 354/13) in December 2014. Consequently, this recent judgment is not much of a surprise to practitioners and HR professionals who have been watching this debate unfold. The decisions in Kaltoft and Bickerstaff do not mean that obesity in itself is now a stand-alone 'protected ground' or 'protected characteristic' like gender, age, race etc. What the decisions confirm is that, in certain circumstances, obesity (and the associated conditions and impairments) may fall within the definition of a disability for the purposes of the DDA.
In detail – the case facts
The Claimant was morbidly obese, and suffered from a number of health complaints including gout, sleep apnoea, constant tiredness and loss of concentration. One issue to be determined by the Tribunal was whether the Claimant was a 'disabled person', as defined by the Disability Discrimination Act 1995 (the "DDA"), by virtue of his obesity and/or a combination of gout and obesity.
By way of reminder, under the DDA, a person has a disability if he has a physical or mental impairment; and that physical or mental impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
The Tribunal considered the recent CJEU decision in the case of Kaltoft which held that, although there is no general principle of law prohibiting discrimination on the grounds of obesity, that it may do so in certain circumstances if the obesity hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.
In Focus - The decision
In some circumstances, an employee may have protection under the DDA and it is not necessary for an obese or overweight employee to point to other medical conditions.
In practice - Considerations for Employers
Whilst it is clear from the decision that obesity in itself is not a 'disability' under the DDA; if a person's capacity is limited as a result of long-term physical or mental impairments which hinder that person's full participation in the workplace, protection may be afforded under the DDA. Employers in Northern Ireland should be alert in assessing difficulties or any workplace obstacles an employee may face as a result of their obesity, for example, where the employee's obesity has an adverse effect on their mobility or breathing.
The DDA places positive duties on employers to make reasonable adjustments for disabled employees and consequently employers may need to adopt their approach to absences, complaints and requests for alterations to the workplace by those obese or overweight employees.