Case law update: Obese employee was disabled

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In Walker v Sita, an obese claimant who suffered from a range of conditions associated with his obesity was found to be a disabled person within the meaning of the Equality Act 2010. But obesity by itself is not a disability, rules the EAT.

Background

Mr Walker was 21.5 stones, and obese. The view of the employer’s occupational health specialist was that he was carrying the equivalent of around 18 5lb bags of sand in extra weight.

He suffered from asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, anxiety and depression, recurrent fungal infections, sacro-iliac joint pains and a range of other issues.

The medical evidence revealed no underlying condition but indicated that a significant part of Mr Walker’s symptoms was played by a “functional/behavioural component” and that his health problems were accentuated by obesity.

EAT ruling

In a brief judgement, the EAT ruled that Mr Walker was a disabled person within the meaning of the Equality Act 2010. The judge pointed out that the underlying cause of a disability doesn’t matter, except that in cases where a claimant cannot show any underlying condition it might raise the question of whether the claimant is genuinely suffering from the symptoms he complains of.

In this case, however, the claimant was disabled.

The judge took the opportunity to clarify the law on obesity and disability. He said:

“..though I do not accept that obesity renders a person disabled of itself, it may make it more likely that someone is disabled……it may also be relevant evidentially to ask whether the obesity might affect the length of time for which any impairment was to be suffered. Thus in the case of someone determined to lose weight, in respect of whom it could confidently be predicted that they would reduce their weight to normal levels within a year, with the consequent result that they no longer suffered from impairments which could confidently be ascribed to the weight itself, this could have the result that there was no disability – for those impairments would not last for over 12 months.”

Comment

In this case, a quick glance at the list of the claimant’s health problems would have indicated that he was very probably disabled. There was no evidence that he was making any of these problems up. However, the claimant’s problems were apparently caused, or at least made much worse, by his obesity.

To what extent should an obese person be regarded as a disabled person? This was an issue which caused a lot of debate when disability discrimination was first outlawed in 1995. Some employers felt that extending the protection of discrimination law to the obese was a step too far. Many regarded obesity as a lifestyle issue, not a disability.

But the EAT confirms that employers must take obese employees as they find them. If they are suffering from impairments which have a substantial and long term adverse effect on their ability to carry out normal day-to-day activities then they are disabled.

It does not matter if the impairments are caused by obesity. The only exception would be where the employee is on track to lose the excess weight and resolve the associated health problems over the next 12 months. However, the test focuses on what is “likely”, or as the judge put it, what could “confidently be predicted” rather than on what the employee could potentially or has been medically advised to try to achieve.

The judgement also upholds the Government’s “Guidance on matters to be taken into account in determining questions relating to the definition of disability”, which is not an authoritative statement of the law but which must be taken into account by tribunals.

This guidance specifically states that it is important to consider the effect of an impairment, not its cause, and gives the examples of liver disease resulting from alcohol dependency or breathing and mobility difficulties affecting an employee’s ability to walk, caused by obesity.

Download a copy of the current Guidance on matters to be taken into account in determining questions relating to the definition of disability, from here.

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