Weighty issues cannot be ignored

We may be living in an age of diets and healthy alternatives but after a landmark ruling in December by the European Court of Justice, Tayside legal firm Miller Hendry is reminding local employers they will need to review their approach to employees whose weight may be causing them problems in the workplace.

The changes in the law are a result of rising obesity levels, which in the UK have doubled in the last decade alone.

The court has ruled that if the obesity of a worker “hinders the full and effective participation of that person in professional life on an equal basis with other workers”, then obesity can fall within the concept of “disability”.

The decision is binding across the European Union and creates a precedent that is likely to have a major impact on employment rights in the UK.

Although the judgement stops short of declaring obesity to be a protected characteristic against which all discrimination is prohibited, it means that employers, retailers and venues open to the public will have to review the way they treat overweight staff and customers.

In the UK, statistics show that around one in four people are overweight.

Alan Matthew, partner and employment law expert with Miller Hendry, says: “Employers now have a duty to take ‘reasonable’ steps to accommodate any obese employee, visitor or customer. That could mean a bigger desk, larger chair or offering a parking space close to the office.

“And it’s not just employers, as anywhere that’s open to the public, such as retail outlets, restaurants and sporting venues, will have to make reasonable adjustments for their customers.

“However, it is about a reasonable response, so it’s very unlikely that a corner shop will be expected to make the same sort of investment as a major high street retailer.”

The case of Kaltoft v Municipality of Billund involved a Danish childminder who claimed his employer had ended his contract of employment because of his weight and that this amounted to unlawful discrimination.

Mr Kaltoft was 5ft 7in and weighed more than 25 stone, with a BMI of 54, which is extreme or morbid obesity under the World Health Organisation classification. The Danish court referred the case to the European Court of Justice (ECJ), asking whether obesity amounts to a form of disability under the Equal Treatment in Employment Directive.

Following the ruling, the Danish courts will now have to review the case to decide whether Mr Kaltoft’s weight has given rise to factors that can be classed as a disability.

“Employers need to be careful they don’t suggest that an overweight employee has only themselves to blame,” says Alan.

“This ruling places obesity in the same position as other forms of risk taking, such as skiing or horse riding.

“We don’t refuse special treatment to someone who is unable to walk following a horse riding accident and now we can’t refuse special treatment to someone who cannot fully participate in their work life because of their weight.

“As well as dealing with the problems that obesity may give rise to, all employers should make sure they encourage healthy lifestyles at work.”

For information on the changes in law, see www.millerhendry.co.uk or contact 01382 200000.

Employers need to be careful they don’t suggest that an overweight employee has only themselves to blame. ALAN MATTHEW, PICTURED RIGHT