Legal first as obese worker wins disability harassment claim

An obese employee has won a disability harassment claim after being taunted about his weight by a work colleague.

It’s the first case of its kind in the UK since the Court of Justice of the European Union (CJEU) ruled last year that obesity could be considered as a disability in certain circumstances.

This latest case involved a man called Mr Bickerstaff who worked for a company in Antrim. He claimed he was harassed by a colleague who told him that he was “so fat he could hardly walk”. On another occasion he was told that “he was so fat that he could hardly feel a knife being stuck into him”.

Mr Bickerstaff brought a claim of harassment on the grounds of his disability.

During the hearing, the Employment Tribunal heard evidence that Mr Bickerstaff had an excessive body mass index of 48.5 and suffered from sleep apnoea and gout.

It held that he had been “harassed for a reason which related to his disability, namely his morbid obesity condition”.

In reaching its decision, the tribunal took into account the CJEU ruling in the case of a Danish child minder Karsten Kaltoft, who was dismissed for being so overweight that he needed help to tie a child’s shoelaces.

The court ruled that obesity can constitute a disability in certain circumstances if it impairs a person’s ability to work.

The ruling stated: “The concept of ‘disability’ within the meaning of the directive must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.

“While no general principle of EU law prohibits, in itself, discrimination on grounds of obesity, that condition falls within the concept of ‘disability’ where, under particular conditions, it hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.”

Commenting on the Bickerstaff case, Unite regional secretary Jimmy Kelly told Personnel Today magazine: “Workers who suffer abuse on grounds related to their obesity now have the added protection of being able to pursue their employer/abuser in the Tribunal for humiliating, degrading or violating treatment. Previously such cases would likely been heard in the civil courts as a stress at work claim.”

Employers may wish to re-assess their employment policies to take account of the rulings from the tribunal and the CJEU, which could pave the way for more disability discrimination claims.

Please contact Robert Bedford if you would like more information about the issues raised in this article or any aspect of employment law.