This article was written by Caroline Prosser, Solicitor, Hill Dickinson LLP and Kerstie Skeaping, Partner, Hill Dickinson LLP.
In Walker v Sita Information Networking Computing Ltd a man weighing over 21 stone was held to be disabled by the Employment Appeal Tribunal. Does this mean that all those who are obese will be classed as disabled and therefore imposing upon the employer a duty to make reasonable adjustments to premises or working practices? Should obese people be protected by the disability legislation when it could be argued that in most cases the obesity is self-inflicted?
A person is considered obese if they are very overweight (with a BMI of 30 or more) and have a high degree of body fat. The NHS discusses on its website how a survey published in 2012 found that just over a quarter of all adults (26 percent) in England are obese. With obesity rates continuing to rise at an alarming rate, employers will more frequently come across problems experienced by obese employees in performing their role. Indeed, some experts believe that obesity is responsible for more health problems than smoking including the likelihood of diabetes, heart disease and some types of cancer.
Should employers assume that any member of staff with a BMI of 30 or more is disabled under the Equality Act? And, what steps is an employer under to protect the health and wellbeing of its employees?
Mr Walker suffered from numerous health problems both physical and mental including knee problems, bowel problems, chronic fatigue syndrome, asthma, anxiety and depression. These health problems gave rise to a number of symptoms which seriously affected his day to day living both physical, such as pains in his leg, abdomen and feet; and mental, such as poor concentration and memory. When the occupational health specialist examined Mr Walker, they had not been able to identify a physical or organic cause for the health problems and described these as a “functional overlay” compounded by his obesity. The Tribunal at first instance found that the claimant was not disabled because it was not possible to identify a physical or mental cause for his symptoms.
The Claimant appealed to the Employment Appeal Tribunal (EAT) which upheld the appeal. The EAT noted that the tribunal had applied the wrong test. The test for disability under the Disability Discrimination Act 1995 (now replaced by the Equality Act 2010) is whether someone has a “physical or mental impairment which has a substantial and long term effect on his ability to carry out normal day-to-day activities”. The issue therefore is whether the person has an impairment, not whether there is an ascertainable cause. However, if there is no medical cause then it is open to the Tribunal to conclude that the symptoms claimed to be suffered are not genuine. This was not the case here, Mr Walker’s symptoms and the effect of those symptoms were not in question.
The EAT judge pointed out that obesity in itself would not render a person disabled, but it may make it more likely that a person is disabled as a result of health problems caused by the obesity. Long term effect is defined as having lasted or being at least 12 months. So an employee planning on losing the weight may therefore not satisfy this part of the test. Of course if the employer suggests that the employee loses weight (which is always going to be a tricky conversation in itself) and then the employee does not, it is not open to them to not comply with the duties to make reasonable adjustments if the employee is deemed to be disabled.
If obesity makes it more likely a person is disabled then are we moving towards a position where obesity in itself will be a disability? How many obese people do not suffer long term substantial impairments as a result of their weight? As the test for what constitutes “a substantial adverse effect” just means more than something “trivial” (it is one or the other and not a sliding scale) most adverse effects are probably going to be considered substantial. Here we can make a comparison with liver disease caused by alcoholism. Alcoholism cannot be a disability under the legislation, and this also can be argued to be self-inflicted, but the liver disease itself would no doubt be classed as a disability. If we exclude all health problems that are caused as a result of obesity, then would we also have to exclude lung cancer caused by smoking? It is not for the tribunals or employers to make these decisions.
If an employer is faced with deciding whether an obese employee is disabled, they should do the following: firstly, assess if there is an impairment and the effect of that impairment. Then establish how long the employee has suffered from the impairment. If there is a good chance that the employee is considered disabled then the employer needs to consider whether there are any reasonable adjustments that need to be made.
As the rates of obesity increase the concern that will be felt by employers is not just that the employees may be considered disabled, but also sickness absence rates may increase, wellbeing of employees may be affected and potentially leading to capability issues. It is therefore in the best interests of the employer to provide access to some form of wellbeing programme. This could include organising classes, such as yoga in the lunch break or running club after work, setting up their own slimming clubs or engaging a health visitor to give advice sessions and one to ones on site. Many companies are reviewing the choices of food they provide on site and replacing them with healthier options. Some firms are providing free fruit to encourage their employees to achieve their five-a-day. In taking measures such as these, the employer is assisting in the wellbeing of their employees, but also encouraging its employees to take responsibility for their own wellbeing.
