News that the European Courtof Justice in Luxembourg has ruled in favour of obesity (or as it is oftentermed "being severely overweight") being potentially viewed as a"disability" if it has an affect on a person's ability to work, lookscertain to add further to the minefield of employment law. The judgement did not propose thatbeing overweight constituted a disability per se, but it instead recognisedthat there should be protection in place to avoid the potential for long-termdamage through being obese.

The generally accepted criteria for being classified as ‘overweight’is having a body mass index of over 30. The BMI index (or Quetelet index as itis can alternatively be called) applies to both adult men and women, and ensuresthat it is not simply a matter of being over a certain arbitrary weight, as itensures a ‘truer’ measure is used with consideration of body fat depending on heightand weight.

Karsten Kaltoft’s groundbreaking case in Denmark has resultedin the ruling, the latest outcome of the 25-stone former childminder’s appealagainst his dismissal from his job with Billund city council after fifteenyears’ service. Perceived issues arose as his size grew over the years and suchbasic tasks as bending down to tie achild’s shoelaces were alleged to have become beyond him, a challenge that hehas subsequently denied.

In response, his former employer claimed that he wasdismissed because there was no longer sufficient work to justify maintaininghis employment. The ruling by the EU was a result of the referral by the Danishcourts to them, so it remains to be seen whether Mr Kaltoft’s case willactually be deemed to satisfy the requisite criteria.

Already (as some mightsuggest) "burdened" with a plethora of laws and rulings that have tobe adhered to and considered when employing or dismissing employees, thelikelihood is that the complexities will now increase.

That could be viewed as beingnecessary if there is to be no prejudice when it comes to consideration of therights of individuals to a "fair chance" in the workplace, but mustalready be music to the ears of the legal system as they see anotheropportunity to use the "wrongful dismissal" card (in their clients'favour of course!). Stand by for specialists in the area springing up and puttingforward their credentials for representing individuals in cases, where itcould be argued that dismissal was down to being overweight. 

Withemployers already duty bound to bear gender, race and other forms of disabilityas no barrier to employment, they can now add obesity to the equation.

Thepotential for calls of unfair dismissal (or even non employment in the firstplace) would seem bountiful and the likelihood of a blurring of what is goodbusiness practice against what could be classed as unfair discrimination seemsinevitable.

Italso potentially sends out something of a mixed message in the UK, where muchof the government's current thinking seems to be towards "nudging"the general populus towards a more healthy lifestyle, if they are then forced toaccede to an EU dictate that says that obesity should be classed as adisability after all.

GPs will also have to be careful when discussingperceived weight problems with patients to not be seen as being discriminatoryin their advice.

Could there be ‘rippleeffects’ in terms of additions to the criteria for being granted Disability Allowancefor people who it is deemed can not work due to being overweight? Willemployers have to cater for staff who become overweight while in the employ ofa company or who join a company overweight in the first place, by allowance inthe set up of the workplace (such as for wheelchair users or people who arecertified as being blind) ?

What about employees who are dismissed when an overweight person remainsin their job in the same role, as the potential for recriminations and counterappeals in terms of ‘positive’ discrimination (or discriminating in favour ofsomeone because they have a disability, with no consideration for their actualabilities to do the role in the first place to a requisite level) would seempossible. It would seem to be a potential ‘minefield’ and seems certain to leadto further discussion over the months and years to come.
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