Are the Obese Protected from Discrimination on the Grounds of their Weight?

Although discrimination on the grounds of someone’s weight is not unlawful for the purposes of the Equality Act 2010 (and nor was it unlawful under the old DDA), nevertheless obese individuals may well fall within the provisions of the Act as a result of other impairments which arise as a result of their obesity.

A person has a disability if he 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”.  Whilst obesity, of itself, cannot be classed as an impairment, in the recent case of Walker v Sita Information Networking Computing Ltd,  Mr Walker, as a result of his obesity, had numerous physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, bowel problems, anxiety and depression), which, as a result of “functional overlay” caused him significant difficulty in his day-to-day life.  Functional overlay is defined as “an emotional aspect of an organic disease. It may occur as an overreaction to an illness and is characterized by symptoms that continue long after clinical signs of the disease have ended”.  It is not, however, a medical condition.  The Employment Tribunal judge at first instance, finding that there was no clear medically defined cause of Mr Walker’s condition, held that he was not disabled.

However, The EAT (the President, Mr Justice Langstaff sitting alone) allowed Mr Walker’s appeal. He said that the employment judge had been wrong to focus on the fact that the medical evidence could not identify a physical or mental cause for Mr Walker’s conditions. The cause, he said, was not the issue.  The determinative factor was whether Mr Walker had a physical or mental impairment which had a significant effect on his ability to carry out normal day-to-day activities and he clearly had both.  The cause of such impairment was not the issue to be determined and the fact that a claimant’s impairment may lack an apparent cause was really a matter of evidence rather than a legal issue. If there is no evident cause of a supposed impairment, then a tribunal may conclude that the claimant does not suffer from it.  However, in this case, there was no challenge to the evidence that Mr Walker was suffering from the impairments he complained of.

Mr Justice Langstaff concluded that:

  • Obesity does not of itself render a claimant disabled. However, it might make it more likely that they are. On an evidential basis, a tribunal might conclude more readily that an obese claimant suffers from an impairment or a condition such as diabetes. Further, the obesity might affect the length of time for which the impairment is likely to last (with regard to whether the impairment has a “long-term effect”). Where an obese individual is determined to lose weight, and a tribunal could conclude that they will reduce their weight to normal levels within a year, this might mean that impairments connected with the obesity might not be considered “long-term” for discrimination purpose.

Whilst on the face of it this looks like a case of weight discrimination being brought in by the back door, in fact it is no different from the current position whereby, for example, an alcoholic could be protected from discrimination not because of his alcoholism (an excluded condition) but because of, for example, associated liver disease.

Employers might, however, want to consider helping their employees to live a healthier lifestyle and one way might be to stop the tradition which exists in many companies of staff bringing in cakes when it’s their birthdays!

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