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FAT: THE NEW DISABILITY?



Wed 8 October 2014 LUKE HUTCHINGS
LUKE HUTCHINGS >

Partner

When you think about a colleague at work who might be classed as disabled, you might think of someone with mobility issues, someone with hearing loss, or perhaps someone recovering from cancer. You might not consider someone whose physical frame impacted on what they could do around the office and in their everyday lives. 

Perhaps the fact that obesity is not immediately thought of as a disability has something to do with the notion that it is a “self-inflicted” problem.  

Such ideas may be open to challenge after the recent publishing of the opinion of the Advocate General to the European Court of Justice, the institution of the EU that encompasses the whole judiciary.  The advice was handed down in a case which is considering obesity as a disability and while advice is not binding on the Court, it is usually followed.  

Drawing on the United Nations Convention on the Rights of Persons with a Disability, ratified in 2010, and a growing body of case law, the Advocate Generally suggested that “severe obesity” may qualify for protection under the law.

Interestingly, the Advocate General appeared to steer away from recommending a general protection for obesity based on the effects on the person in question.  He envisaged an additional hurdle with an objective test before the obesity could be classed as “severe” and therefore qualifying for protection.  In the view of the World Health Organization, the most extreme type of obesity may be said to affect those  individuals with a BMI of over 40.  The Advocate General was silent on why there was a need for this objective test but it is likely that this would be an attempt by him to pre-emptively limit an “opening of the floodgates”.

The position in England and Wales is a little less clear.  The Employment Appeal Tribunal has held that obesity may make it more likely that someone is disabled, when looking at the difficulties they face in their day-to-day life, although that is a far cry from saying obesity is a disability in and of itself.  The final decision of the European Court will no doubt influence and shape the direction of the law in this area in our jurisdiction, too.

One of the employment specialists at Taylor Rose Law LLP would be happy to discuss this with you further.  Call us on 01733 333 333  for a no-obligation chat.


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