We are recruiting for a new marketing manager in our business. We have had a number of applicants. However, the applicant who performed best on paper and in the interview is severely obese. In the CEO’s opinion, this indicates a lack of will power and a lazy attitude, which she thinks would make this applicant unsuitable for the role. A friend of mine has told me that obesity constitutes a disability and that the Company cannot discriminate against the applicant on the ground that he is obese. I want to make sure that we are not running a risk of a discrimination claim if we do not employ this individual.
If we do employ him, will we be required to make adjustments for him because of his weight?
The subject of whether obesity may constitute a disability has been a hot topic in the press recently because of the referral to the European Court of Justice by the Danish Courts in the case of FOA, acting on behalf of Karsten Kaltoft v Billund Kommune (C-354/13) of the question of whether obesity can in itself constitute a disability.
When the English courts have considered this question (such as in Walker v Sita Information Networking Computing Ltd UKEAT/0097/12), they have concluded that obesity does not, of itself, render a claimant disabled. However, it might make it more likely that he or she is disabled (because of the numerous medical conditions associated with obesity). A tribunal might therefore be willing to conclude more readily that an obese claimant suffers from a physical impairment.
The outcome of the Kaltoft case in the European Court will have significant implications for employers. The Attorney General has recently issued his opinion in the case. His view was that in severe cases (a BMI of over 40), obesity might be a disability. It seems likely that the European Court will follow the Attorney General's opinion. This means that morbid obesity is potentially a disability, and it could therefore trigger potential obligations to make reasonable adjustments at work and will restrict the ability to lawfully reject job candidates due to their weight. Relevant reasonable adjustments might include seating arrangements; access to the office; and physical requirements which may be impaired due to obesity (such as bending and lifting).
Even if obesity is not a disability in itself, it may be that the applicant for your marketing manager position is disabled under the Equality Act 2010 as a result of other conditions caused by the excess weight, such as type 2 diabetes.
We would suggest that best practice would be to:
advise managers in the business to consider applicants on the basis of their applications and performance at interview, rather than perceived characteristics associated with obesity. Highlight that there could be a discrimination risk if an applicant is rejected based solely on obesity as a factor;
if the CEO decides that she does not want to appoint this applicant, ensure that she creates a paper trail showing objective grounds for the decision (which do not reflect comments in relation to the obesity of the applicant). This will be important to show what influenced the decision maker’s decision regarding the appointment if there is a claim made against the company;
if you do have obese employees, ensure that you conduct a workplace assessment in the same way that you would for other employees, but do consider whether special adjustments or equipment are required as a result of the applicant’s weight or size (such as a special chair). This is likely to be required in accordance with your health and safety obligations, regardless of whether obesity is a disability; and
approach with caution rejecting any additional reasonable adjustments that may be required because of the employee’s obesity, as this may give rise to potential claims of discrimination.