Landmark Obesity Case in NI and its Implications

Landmark Obesity Case in NI and its Implications...

A tribunal in Northern Ireland has just ruled on what is being described widely as a landmark case on obesity and disability. The case was of Neil Bickerstaff –and- Gerard Butcher (Case Ref: 92/14) in which Mr Bickerstaff worked at Randox Laboratories in County Antrim. It involved a complaint by Mr Bickerstaff that he was harassed on a daily basis on account of his obesity by a number of colleagues, over a number of years. The case has again underlined that obesity may be (in certain circumstances) afforded protection under disability discrimination law.

This case and the widely reported CJEU Kaltoft case last year have raised a number of technical points of law, but also raise questions about our own personal bias when it comes to obesity and other matters of health and wellbeing in the workplace.  It also raises issues about our approach to bullying and harassment and whether certain personal characteristics have thus far been considered fair game.
 
Every now and then these cases provide an opportunity to reflect on our own office or company culture and remind us to take a good look at our own attitudes and limits.  It is fair to say that obesity is proving to be a controversial subject.
 
Some questions which have been raised include;

Surely if the obesity is due to overeating, it can’t be considered a disability?

• Is obesity now a protected characteristic in harassment?
• What constitutes obesity in relation to the protection?
• Are employers obliged to make reasonable adjustments for all people over a certain weight?
• Who is liable when an employee harasses another for being overweight?

Surely if the obesity is due to overeating, it can’t be considered a disability?

This question is a reflection of the view of many people who have thus far considered obesity as ‘self inflicted’ and therefore ‘unworthy’ of protection.  Some of the less ‘tasteful’ commentators on the Kaltoft ruling in particular, not least one Katie Hopkins, insisted on sharing their opinion that obesity is due to poor self control and therefore should be afforded no special treatment.  
 
It is timely to note that whilst many harbour the belief that obesity is self inflicted, a recent and very high profile and extensive study published in ‘Nature’ has found that about a fifth of obesity is caused by genetics (DNA) rather than lifestyle, meaning that for many in the morbidly obese category, exercise and dieting are of little use.

To get things into proportion, morbid obesity accounts for an estimated 3.4% of women and 2% men, however 64% in the UK are estimated to be either obese or overweight.  Related conditions are of growing concern, e.g. obesity-related diabetes is projected to treble by 2050. So, many morbidly obese people are certainly not inflicting their condition on themselves and whilst those with severe and possibly ‘debilitating’ obesity are in the minority, the issue of chronic illness relating to being overweight is growing and should be a concern to all of us, not least employers considering their general approach to health and wellbeing at work.
 
The courts have taken a very clear view that the reason behind the condition is not of legal importance, but rather the effect of the condition will determine whether the obesity or its related conditions (such as diabetes, heart conditions, depression) will translate to protection under the disability legislation.  In both Kaltoft and Bickerstaff, the courts commented that obesity in itself is not a disability, however if a person's capacity is limited as a result of long-term physical or mental impairments which hinder that person's full participation in the workplace, protection may be afforded.  The decision will therefore rely on the particular facts of the case, as was previously determined in Walker v Sita Information Network Computing [2013] UKEAT 0097_12_0802
 
Is obesity now a protected characteristic in harassment?
 
Disability is a protected characteristic in harassment.  It therefore follows that employers need to be aware that harassment from colleagues about an individual’s obesity (whether verbal, through email or social media) may constitute disability harassment, where the effect of the obesity can be classified as a disability.  Employers can therefore  be vicariously liable for such comments, which can lead to tribunal claims and compensation for injury to feelings.

What constitutes obesity in relation to the protection and are employers obliged to make reasonable adjustments for all people over a certain weight?
 
The key question is not someone’s weight or their particular BMI, but the effect of their obesity and/or other related conditions and whether or not this therefore may constitute a disability.  In the reported cases of Kaltoft and Bickerstaff, both gentlemen were classified as morbidly obese with significant health issues preventing them from participating on an equal footing with colleagues.  Employers will need to consider their liability to make reasonable adjustments for people with similar ‘limiting’ obesity related conditions.  This may include looking at the location of parking spaces, wider chairs, customised desk spaces etc.

Who is liable when an employee harasses another for being overweight? 
 
The Bickerstaff case raises the interesting point of joint and several liability.
Liability can be apportioned by a civil court, but not by a tribunal unless the liability was clearly 'divisible', for instance disability harassment, where the effect of the obesity can be classified as a disability.  Employers can therefore  be vicariously liable for such comments, which can lead to tribunal claims and compensation for injury to feelings.

What constitutes obesity in relation to the protection and are employers obliged to make reasonable adjustments for all people over a certain weight?
 
The key question is not someone’s weight or their particular BMI, but the effect of their obesity and / or other related conditions and whether or not this therefore may constitute a disability.  In the reported cases of Kaltoft and Bickerstaff, both gentlemen were classified as morbidly obese with significant health issues preventing them from participating on an equal footing with colleagues.  Employers will need to consider their liability to make reasonable adjustments for people with similar ‘limiting’ obesity related conditions.  This may include looking at the location of parking spaces, wider chairs, customised desk spaces etc.

Who is liable when an employee harasses another for being overweight? 
 
The Bickerstaff case raises the interesting point of joint and several liability.
Liability can be apportioned by a civil court, but not by a tribunal unless the liability was clearly 'divisible', for instance where the employer was guilty of a particular type of discrimination. For example, an employer's failure to make reasonable adjustments for a disabled employee, or an employee who was guilty of a different type of discrimination, such as harassment of the disabled person.

In this case,  Mr Bickerstaff brought claims for disability discrimination against Randox Laboratories and a number of colleagues.  The claims against the company and all but one of the individuals were settled.  Mr Bickerstaff’s claim against Mr Butcher proceeded to a tribunal hearing.