A recent Northern Ireland Industrial Tribunal (Bickerstaff v Butcher) made a unanimous decision that the claimant was disabled and upheld his claim of harassment. So how does this affect obesity and disability discrimination?
Mr Bickerstaff worked at Randox Laboratories in Co Antrim where he said he was harassed by colleagues, in particular Mr Butcher, because of his weight. Mr Bickerstaff brought an employment claim against Mr Butcher for harassment.
In one instance, Mr Butcher had said that the claimant was 'so fat he could hardly walk'. In another, the respondent said Mr Bickerstaff was 'so fat he would hardly feel a knife being stuck into him.'
The employment judge said it was satisfied that Mr Bickerstaff had been 'harassed for a reason which related to his disability, namely his morbid obesity condition'. It heard evidence of the claimant's excessive body mass index (48.5), sleep apnoea and gout.
The tribunal panel referred to December's ruling in the European Court of Justice (ECJ) in the case of Karsten Kaltoft, a Danish childminder who 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.
Comments relating to their weight is an added challenge that obese employees are more likely to face, and since the ECJ confirmed that obesity can be a disability, such comments may constitute disability harassment.
The judgment in this action made reference to the medical report's suggestion that the claimant's health would have been improved had he lost weight over a period of time, but that it made no difference to whether or not he was disabled. The important thing for the tribunal was the impact of the condition on the worker, not its cause.
Employers and employees need to be aware that since the ECJ confirmed that obesity can be a disability, comments aimed at an obese colleague may be classed as disability harassment, and as such, the individual may be able to pursue their employer, or their abuser, at an employment tribunal.
It is important for employers to be live to this area of case law and look to possibly amend any equality and disciplinary/grievance policies as a result.
