The bigger picture

I should start by declaring an interest: I am what shop assistants describe with charitable euphemism as a “larger gentleman” and have, therefore, followed the European Court of Justice case of Kaltoft (FOA v Kommunernes Landsforening C-354/13) with interest. In 2010 Mr Kaltoft, a child minder, was made redundant. He claims that he was selected for dismissal because he is obese. The facts are disputed but there is a logically prior issue: does it matter if obesity was the reason for his termination? Would that be unlawful?

Kaltoft argued that selecting him for redundancy because of his obesity was unlawful discrimination. If you are unfamiliar with discrimination law, its underlying premise is that employment decisions are often based, inappropriately, on characteristics that have little real relevance to the issue to be decided. For instance, if being female is counted against a candidate for a job as a solicitor she will have been unlawfully discriminated against because of her sex. The decision will have been both stupid and unjust. It is stupid because very few business decisions are genuinely dependent on whether an employee has a penis. It is unjust because the product of stupid decision-making is that employees who deserve the same career opportunities as their colleagues are denied them. Domestic discrimination law does not expressly outlaw stupid and unjust business decisions. Instead it concentrates on certain characteristics which, experience suggests, commonly result in bad and unfair decisions. Those characteristics are referred to in the Equality Act 2010 (EqA 2010) as “protected characteristics” and include sex, race, sexual orientation, religious belief and significantly for present purposes, disability. The same specific characteristics are identified in European anti-discrimination legislation.

Overly ambitious

Kaltoft’s most ambitious argument failed. He contended that there was a general principle of European law precluding discrimination in employment that stretched beyond the specific protected characteristics expressly identified in legislation. Having failed to persuade the European Court of Justice (ECJ) on his first argument, the challenge for Kaltoft was to persuade the court that obesity was capable of amounting to a disability. The Advocate General took the view that it was provided that it was “severe, extreme or morbid” which it would be if the employee’s body mass index (BMI) was higher than 40. A man of average height would need to weigh 20 stone to have a BMI of 40. The proposal had the benefit of a degree of certainty but employers were spared the necessity of regular employee weigh-ins as the court rejected that approach. Instead, the court found that obesity could amount to a disability where “under given circumstances, [it] entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one”. In other words, it all depends on the circumstances. Domestic law must now be read so as to conform with the ECJ’s decision.

Reaction to the decision in the press and on social media has been mixed. The most frequent complaint has been that obesity should not attract legal protection as it is an impairment for which the employee is responsible. The complaint is meritless.

• First, the premise that an obese person is just an exercise of will and some dieting away from being a healthy weight is ill-founded. Some employees have medical conditions that adversely affect their ability to control their weight.
• Second, and more importantly, there is nothing in either European or domestic law that suggests that fault is relevant. If someone has lost their legs in a car crash they will be protected from discrimination whether or not they caused the accident. Encouraging employers to inquire into the extent to which an employee may be responsible for their impairment is to encourage a degree of intrusion that would make the situation of many employees worse rather than better. The point was expressly considered by the ECJ and the judgment emphasises that the origin of the impairment is irrelevant.

A risky business

What are the consequences for employers? Two particular areas of risk stand out. The first is that an employer may be required (by EqA 2010, s 20) to make reasonable adjustments to obviate any substantial disadvantage to which an obese employee is subjected by their physical working conditions or any employment provision, criterion or practice. The obligation, however, is only to do what is reasonable. Despite the hand-wringing in the press, it is unlikely that many employers are going to find that the ECJ ruling results in significant additional costs on this ground.

The second area is harassment. Twitter has been awash with people complaining that they cannot now laugh at “fatsos”. Predictably, complainants have laid the blame at the door of “political correctness” which, it seems, “has gone mad”. However, it is worth bearing in mind that harassment protection is not limited to those who actually have the protected characteristic. It covers those perceived to be obese even if they do not meet the medical definition; those who were obese but have since lost weight; and even (as the result of the Court of Appeal’s decision in English v Thomas Sanderson Blinds Ltd [2008] EWCA Civ 1421, [2009] 2 All ER 468) those mocked as obese by colleagues who do not genuinely believe that their victim has the protected characteristic. If there is a culture in a workplace of mocking obese colleagues, that does now carry a real risk of unlawfulness. 

Sean Jones QC, 11 KBW (Sean.Jones@11kbw.com; @seanjones11kbw; www.11kbw.com)