The outcome of a case in the European Court of Justice (ECJ) today [12 June] on whether obesity should be deemed a disability could have massive implications for employers and recruiters.
The discrimination case brought by Danish childminder Karsten Kaltoft against his local authority Billund Kommune could trigger employers to make reasonable adjustments at work or restrict the opportunity to reject job candidates as a result of their weight.
In the UK, the Equality Act protects individuals from discrimination if they have a ‘protected characteristic’ such as disability. To date in the UK, the only real law came before the Employment Appeal Tribunal in 2012 involving an obese man suffering from a number of conditions related to, or made worse by his weight.
The court found that that being significantly overweight does not render a person disabled of itself, but could make it more likely that they are disabled.
According to law firm Irwin Mitchell, the case before the ECJ is more significant in that it will consider whether being obese amounts to a disability without any other associated problems necessarily being present.
Glenn Hayes, an employment law partner at Irwin Mitchell, says: “If it were decided by the ECJ that obesity is a disability and therefore is protected under the UK's discrimination laws, there could be some significant implications for recruiters. It would be unlawful to make assumptions about whether an obese applicant is suitable for, or can do a particular job because of their weight.
“Recruiters will also have to be careful about the questions they ask. For example, asking an overweight candidate if he/she is ‘fit enough’ for a relatively sedentary job is likely to be discriminatory. Similarly, rejecting an obese candidate on the basis of their size is also likely to constitute discrimination. Recruiters might also have to consider making reasonable adjustments to the position to accommodate obese candidates.
“Recruiters will also have to make sure that they record the reasons why a particular candidate has been successful or not successful, because if challenged, and in the absence of any other reasonable explanation, the burden of proof lies with them and not the individual.”
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