Is obesity a disability?

Would your staff make inappropriate comments about a colleague’s weight? Do you know that such comments could constitute disability harassment?  

The definition of a disabled person is broad and includes people with mobility or sensory impairments, long term medical conditions, specific learning difficulties, mental health difficulties and neurodiverse conditions such as ADHD and Aspergers. But a recent judgement might mean that obesity could be included in this list. 

A UK employment tribunal has become the first to consider obesity as a disability following last year’s ruling in the European Court of Justice. In the case of Bickerstaff v Butcher, the court unanimously decided that the claimant is disabled and upheld his claim of harassment. 

Mr Bickerstaff frequently experienced harassment colleagues because of his weight. For example, on one occasion a work colleague has said that Mr Bickerstaff was ‘so fat he could hardly walk’ and on another occasion ‘so fat he would hardly feel a knife being stuck into him’. 

The tribunal referred to a ruling in December in the European Court of Justice (ECJ) where a Danish childminder claimed he was sacked for being too fat. The ECJ said that if obesity hinders ‘full and effective participation’ at work, it could count as a disability. 

The employment judge said it was satisfied that Mr Butcher had been ‘harassed for a reason which related to his disability, namely his morbid obesity condition’. It heard evidence of the claimant’s sleep apnoea and gout because of large body mass index (48.5). 

This judgment also notable that medical report stated that Mr Butcher’s health would improve if he lost weight. But the tribunal pointed out that this made no difference to their decision. That the claimant’s condition was self-inflicted and could have been improved was irrelevant - the important thing for the tribunal to focus on was the impact of the condition on the worker, not its cause.