Is This The Start Of Size Discrimination?
The EAT has held that an employee who suffered from a ‘functional overlay’ of various physical and mental conditions, compounded by obesity, was disabled for the purposes of the Equality Act 2010.
In considering whether a person is disabled, should the focus be upon the cause of the person's symptoms or upon their effect?
Their effect, says the EAT in Walker v Sita Information Networking Computing Ltd.
This case concerned the thorny, and increasingly common, issue of how obesity should be treated for the purpose of disability discrimination. The Claimant weighed 21-stone and suffered from myriad symptoms associated with obesity. The employment tribunal concluded that he was not 'disabled' within the legal definition on the basis that the medical evidence revealed no physical or mental cause of the symptoms, other than obesity. The Claimant appealed to the Employment Appeal Tribunal on the point that the Tribunal had been wrong to focus on the cause of his ill health.
The case does seem to open the door to discrimination being alleged as a result of being overweight.
It seems to suggest overweight people in some circumstances gaining protection under the Equality Act 2010 subject to them being able to show that their size or health condition(s) which manifest due to their size caused them to suffer a detriment. Therefore, obesity does not render a person disabled in itself but it may make it more likely that the person suffers from an impairment which could be deemed to be a disability
Whilst on the face of it this looks like a case of weight discrimination being brought in by the back door, in fact it is no different from the current position on alcoholism, for example, a comparison would be that alcoholics do not as of a right gain protection but if their alcoholism results in either a physical or mental impairment, such as liver disease, which has a substantial, long term affect on their day to day activities that would bring them inside the remit of the Equality Act 2010.
The EAT stated that in such cases the first question is whether or not the individual has an impairment. The second is whether it is physical or mental. The cause is only relevant insofar as it remains open to a tribunal, on the evidence, to find that a person does not suffer from a disability if it has no recognised cause.
The EAT said that disability discrimination legislation did not require consideration of the cause – which was not an issue - of an impairment, the question to be focused upon was whether the employee had a physical or mental impairment, which Mr. Walker did.
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