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Business Law: Andrew West on the potential extension of equality law to include obesity

PUBLISHED: 11:27 21 August 2014 | UPDATED: 11:27 21 August 2014

Andrew West of Gotelee Solicitors

Andrew West of Gotelee Solicitors

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The current UK equality laws do not protect people who are discriminated against because of their size or weight. To amount to a disability, there has to be a physical or mental impairment which has lasted (or will last) 12 months or more and which has a significant impact on normal day to day activities.

Currently, obesity alone would not gain protection, in the absence of a debilitating side effect – for example joint problems causing mobility problems.

But this could change if the Court of Justice of the European Union (CJEU) decides in favour of a Danish child-minder, who says he was sacked for being too fat.

The CJEU is currently sizing up the case of Mr Kaltoft, who is said to weigh 160kg (about 25 stone). He claims that his employer discriminated against him when he was dismissed, because they said that he was unable to carry out his duties because of his size. He has argued that obesity should be a protected characteristic under equality law.

A decision in Mr Kaltoft’s favour would have huge implications for employers in Britain, regularly dubbed the obesity capital of Europe. Workstation adjustments; wider car parking spaces, closer to work; duties which remove or reduce the amount of walking.

These are just some of the potential adjustments that might need to be put in place in future, if employers are to avoid falling foul of obesity discrimination laws. You can see situations where an unsuccessful job applicant could argue that they were discriminated against because of their size or weight. Jokes about a colleague’s size or weight could lead to harassment claims against the employer. Sickness absences could be more difficult to handle. There are a range of issues that would have to be considered. Managers would need to be trained on these.

The Advocate General’s initial opinion is that the morbidly obese (those with a body mass index of 40+) may qualify for protection under the Equality legislation, given that this may increase the likelihood of limitations, such as problems in mobility, endurance and mood. The CJEU’s decision will be some months away, but more often than not, the Attorney General’s decision is followed.

There has been a great deal of media attention given to this case. If a person would have to be morbidly obese to potentially qualify for protection, this would reduce the scope of the protection considerably.

If you need advice on how this may affect your business please contact Andrew West on 01473 211121 or email Andrew.west@gotelee.co.uk

: : Andrew West is an employment solicitor and partner at Gotelee Solicitors in Ipswich.

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