A new EU ruling has held that obesity may amount to a disbility if it hinders a person’s full and equal participation in professional life - so what do construction companies have to consider?
A European Court of Justice ruling has held that obesity may amount to a disability if the obesity hinders the full and effective participation of that person in professional life on an equal basis with other workers.
This could have significant implications for the construction, building and refurbishment industry.
The ruling does not mean that obesity is automatically classed as a disability, rather that the effects of being obese may amount to a disability if the effects of being obese have a substantial and long-term effect on the individual’s ability to carry out normal day to day activities.
If the individual can establish that the effects of their obesity put them at a disadvantage when compared to a non-obese worker they will be protected under the Equality Act from disability discrimination, including harassment relating to disability on the basis of their obesity.
“An obese individual would still have to show that the effect of their weight and/or size puts them at a disadvantage”
An obese individual would still have to show that the effect of their weight and/or size puts them at a disadvantage in their particular workplace and this will be a heavy burden on the worker.
Whether there is a notable disadvantage will of course depend on the type of role and work they do and how being obese affects their ability to perform firstly day-to-day activities and then tasks associated with the role.
Making sure that all new buildings can be fully and easily used by all sections of the community is something that is already enshrined in the Building Regulations, as part of the Disability and Equality Act. Taking into account the needs of an obese person, however that is defined, adds another potential layer of complexity.
“Unhelpfully the European Court of Justice did not consider the weighty issue of when a person is classified as “obese””
If the person is obese because of an underlying medical condition, then they may already be provided for under current legislation. It is the workplace requests of those who don’t have a medical condition, but are still very large, that are now an additional factor that employers will have to consider.
Unhelpfully the European Court of Justice did not consider the weighty issue of when a person is classified as “obese”.
It is likely that the person will need to have a body mass index of at least 20 (this being the World Health Organisation classification), before they will be categorised as obese.
For employers, requests for further ‘reasonable’ adjustments to the workplace now cannot be set aside without risking a claim for disability discrimination.
This could entail changing aspects of the role or modifying the workplace such as providing parking spaces closer to the building, widening doorways and providing larger chairs for workers who may now be protected under the equality legislation.
What is a “reasonable” adjustment will depend on the worker and their role, the size and resource of the employer and also whether the adjustment will alleviate the problem faced by the obese worker. Employers will not be expected to go to all lengths to make changes if nothing, in fact, would put the obese person on an equal footing with a non-obese colleague.
Similarly following this ruling jokes or “office banter” type remarks about a person’s size are out of bounds and could also amount to disability related harassment or victimisation.
As with most changes in legislation, it’s early days in terms of how the ruling will translate into practicality and whether obese workers will seek to use the law as it now stands.
However the ruling certainly throws a spotlight on how severely overweight workers and employees should be accommodated for in the workplace.
Emma Hamnett is a partner and employment law expert with Clarke Willmott