3 Oct 2016

Dear Auntie,

I am an HR manager and we have an employee who can be medically described as obese. This employee has a poor sickness record and has been absent from work due to various conditions including asthma, depression, a bad back and chronic fatigue syndrome.  I consider that the main cause of these conditions is the employee’s obesity.

This employee is currently off sick and has been absent since the start of the year. His medical certificates cite the various ailments set out above.  The business cannot continue to support this employee’s level of sick absence.  However, before taking any action the business needs to understand whether the employee is likely to be considered to be a disabled person under employment legislation, particularly given that his symptoms seem to be caused by his obesity.  I would therefore appreciate your legal opinion on this.

Yours faithfully
Mr Bigbones

Dear Mr Bigbones

Thank you for your query which is very timely. There has in fact been a recent Employment Appeal Tribunal (“EAT”) case which has given some helpful guidance on the relationship between obesity and disability.  I have therefore summarised this case below as well as the definition of disability discrimination under legislation to assist you in determining whether this individual is disabled or not.

Current Legislation
Under the Equality Act 2010, a person has a disability for discrimination purposes if they have a "physical or mental impairment which has a substantial and long-term effect on his or her ability to carry out normal day-to-day activities".  Although the case below has been brought under the old legislation (Disability Discrimination Act 1995 (“the DDA”)), the same principles apply under the Equality Act 2010 (“EqA").  The case law under the old law does, therefore, remain relevant.

Recent Case Law
The case of Walker v Sita Information Networking Computing Limited UKEAT/0097/12 concerned an employee who suffered from a myriad of symptoms including asthma, knee problems, diabetes, anxiety and depression, and joint pains.  He was obese, and the symptoms he was experiencing were described by the original Tribunal judge as “functional overlay compounded by obesity”. It was accepted that he suffered from a chronic permanent condition which affected his daily living.  However, the Tribunal held that this did not amount to a disability.

In the EAT case the judge overturned the Tribunal judge’s decision because the judge incorrectly focussed on the fact that medical evidence could not identify a physical or mental cause for Mr Walker’s conditions.  In other words the Tribunal considered that the cause of the symptoms was Mr Walker’s obesity which in itself was not an impairment pertaining to the EqA definition. The EAT corrected the Tribunal on this analysis and confirmed that the cause of the symptoms was irrelevant.

The EAT clarified that the Tribunal should have focussed on the effect of being obese, which may make it more likely that a claimant has impairments within the meaning of the legislation and therefore a claimant could potentially bring a disability discrimination claim.  The EAT therefore concluded that Mr Walker was disabled for the purposes of the DDA for the following reasons:
•    he had been substantially impaired by physical and mental impairments for a long time;
•    the DDA did not require a judge to focus on the cause of physical or mental impairment but on the effect; and
•    obesity in itself does not render an individual disabled but it may make it more likely that they are.  

The employee in your case is unlikely to be considered by a Tribunal to be disabled because of his obesity when taken in isolation.  However, there is a risk that a Tribunal may conclude that he has a number of physical impairments, which if considered to have a substantial and long-term effect on his ability to carry out normal day-to-day activities, will mean that he will be regarded as a disabled person under the EqA. The fact that these conditions are caused by his obesity is irrelevant.

If you dismiss the employee for sickness absence you run the risk of a claim that this amounts to discrimination. You may avoid liability for discrimination if you can show that the dismissal was not because of the ill-health itself but because of genuine and compelling business reasons.

You will be aware that the EqA, like the DDA, imposes a duty on employers to make reasonable adjustments to premises or working practices to help disabled employees at work. A failure to comply with this duty to make reasonable adjustments is a form of discrimination.  Accordingly, before taking any disciplinary action against the employee for his attendance you should consider whether any reasonable adjustments can be made to assist this employee in returning to work.  

Either way the first step is likely to be an independent medical assessment to ascertain whether he is in fact disabled and what the prognosis is as to a possible return to work. You will then have a better idea as to the potential risks associated with a dismissal.

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