For the purposes of disability discrimination provisions, a person is disabled if he or she has a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out day to day activities.
Some conditions are automatically categorised as disabilities in law, such as blindness, cancer, HIV infection and MS.
By law, some conditions are not to be categorised as disabilities including addiction to or dependency on alcohol, nicotine or any other substance
Note that whilst these conditions (and others) are excluded from disability discrimination protection, impairments caused by any of those conditions might amount to protected disabilities, such as depression resulting from alcoholism.
When an employee is disabled, they are of course protected by anti-discrimination laws. In addition, where (i) a provision, criterion or practice of an employer; or (ii) a physical feature of the employer’s premises; or (iii) the absence of an auxiliary aid; places a disabled person at a substantial disadvantage in relation to relevant matter in comparison to a person who is not disabled, the employer is obliged to take such steps as are reasonable to avoid that disadvantage.
In July, the Advocate General of the ECJ issued an opinion in the case of Kaltoft v The Municipality of Billund in which it was stated that "cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability."
This opens the door for employees who are morbidly obese and whose obesity has a substantial and long term adverse effect on his or her ability to carry out day to day activities to seek (i) reasonable adjustments from their employer and (ii) to seek the protection of the Equality Act 2010 in the event they believe they have been treated unfairly as a result of or for reasons connected with their weight. Note that such claims are not bound to succeed, nor is obesity automatically defined as a disability. This will depend on the facts of each case.
But given the statistic published in February 2014 showing that there was a marked increase in the proportion of adults that were obese between 1993 and 2012 from 13.2% to 24.4% among men and from 16.4% to 25.1% among women, this may be a growth area (no pun in intended) in employment litigation.
For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at email@example.com.