According to the latest Employment Tribunal statistics in the first quarter of 2011 there were a recorded 1,800 disability discrimination complaints. This amounted to 2.3% of the total complaints made in the first quarter.

Under the Equality Act 2010 (“EA 2010”) (and prior to this the Disability Discrimination Act 1995) employees (and, in other areas, customers, students etc.) have a right not to be discriminated against on the grounds of their protected characteristic. Disability is a protected characteristic under the s.6 of the EA 2010 so those with a disability are protected. Section 6 also specifies the definition of a disability -in order to be defined as disabled for the purposes of the EA 2010 the Claimant must have:

  1. A physical or mental impairment
  2. Which has an adverse effect
  3. The adverse effect must affect normal day to day activities (either carried out daily or on a frequent basis)
  4. The adverse effect must be substantial
  5. The adverse effect must be ‘long-term’ (either for over 12 months or for the rest of the disabled person’s life)

The Claimant must prove on the balance of probabilities that they are disabled. If the Claimant’s condition is medically recognised then this is normally a great help towards proving disability. However, if it is not a recognised medical condition or, for example, is recurrent or fluctuates, then the Claimant must normally obtain a medical report to prove that they are disabled. These can be expensive, so this is something for the Claimant to bear in mind.

Unfortunately, whether certain medical ailments – such as clinical obesity – can be defined as a disability is still a ‘grey area’. Although 22% of the working-age population are defined as obese there have hardly been any reported cases on discrimination relating to a worker’s obesity. Why this is one can only guess. What makes this lack of reported cases even more surprising is that obesity is a medically recognised condition. It is been listed by the World Health Organisation’s International Classification of Diseases and has been recognised as a medical condition for over 40 years (Managing Obesity in the Workplace, Williams, N, 2008, pg. 93).

Even if one ignores the medical advice regarding obesity it can certainly be argued that the condition falls within the definition of ‘disability’ under section 6. Obesity is a physical impairment which has an adverse effect on a workers’ ability to undertake normal day to day activities – it would appear to affect one’s mobility, manual dexterity, and ability to lift, carry etc. objects. The effect could certainly be argued to be substantial as its effect is more than trivial (however, it’s wise to get a medical assessment to show that one’s ability to undertake the work is impaired) and arguably ‘long-term’. The last point is one which could cause problems for those with recurrent, fluctuating weight problems. The important point to look at in these cases is whether obesity is likely to recur in the future and whether that recurrence will significantly affect the workers’ day to day activities. Applying the facts relating to obesity to section 6, one would think that obesity would be defined as a disability under section 6. However, what may be stopping both Claimants and practitioners from submitting complaints to the Employment Tribunal is a lack of certainty on this front – a fact which makes the cost of obtaining medical reports prohibitive and potential success less assured.

Workers in the US are protected under disability law if they weigh twice as much or 100 pounds less than their optimal weight. If other common law jurisdictions offer clear protection against discrimination relating to one’s weight, why doesn’t England and Wales?

Redmans Solicitors are London employment lawyers. They are specialist unfair dismissal lawyers and offer employment law advice and compromise agreement advice.

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Redmans Solicitors are a law firm based in Richmond, London. They are specialist employment lawyers and represent both employers and employees in the Employment Tribunal

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