It probably is – sometimes. It depends, really.

In America it is well established that being obese counts as a disability (actually my only source for this is an episode of the Simpsons, but Matt Groening wouldn’t lie would he?). Here in Europe, however, the jury is still out. The Advocate General has just given his opinion in a case brought by a Mr Kaltoft who claims that he was dismissed from his childminding job because of his obesity. The employer, it should be said, denies this and says it was simply a redundancy, but the Danish court has asked the European Court of Justice to rule on whether obesity is a disability within the meaning of the Equal Treatment Directive.

The AG’s opinion – not binding on the Court – is that obesity can be a disability, but he says:

In my opinion, most probably only WHO class III obesity, that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood, that amount to a ‘disability’ for the purposes of Directive 2000/78

The opinion has led to a predictable kerfuffle in the press but I actually think the AG opinion is rather conservative. The AG’s suggestion that protection should be limited to class III obesity seems completely arbitrary.  I would go much further. Not only is obesity (of any class) capable of being a disability, but almost any other condition is too.

Defining Disability

The definition of disability in the Equality Act and associated regulations is both technical and prescriptive. Luckily the Government has published this handy 60 page guidance document explaining it. Feel free to browse through it – but I think it is mostly irrelevant now.

Our Equality Act has to be interpreted in a way which complies with the Directive. On this issue we also have to take account of the United Nations Convention on the Rights of Persons with a Disability because that Convention was ratified by the EU in 2010. The Court of Justice explained in a case I will simply call Ring that the Convention is now to be regarded as ‘an integral part of the European Union legal order’. In that case the Court went relied on the Convention in finding that an employee with lumbar pain and another with whiplash could be disabled within the meaning of the Directive.

The Court referred to the Convention because while the Directive does not try to define disability, the Convention does. Article 1 says:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

This is a much wider definition than we have in the Equality Act. There is no exclusion for addictions, kleptomania or voyeurism (if you’ve missed that part of the UK definition look here). Nor, crucially, is there any need to measure the effect of the condition on ‘day-to-day’ activities which, hitherto, has been central to the UK definition.

Medical v Social Model

Basically, the difference between the Equality Act and the Convention is that our law uses the medical model of disability, which regards the disability as being intrinsic to the individual, whereas the Convention is much closer to the social model of disability which regards disability as arising from the interaction between the individual and society.

The Equality Act essentially asks whether an individual’s condition is serious enough to warrant protection. The Convention asks whether the individual with a particular condition is treated in a way which leads to inequality.

Let’s look at obesity – and assume that we are dealing with someone whose weight can be described as a ‘condition’. Using the traditional UK approach we would ask whether the individual’s ability to carry out normal day to day activities is adversely affected. Can he or she climb the stairs, walk down the street, drive a car, cook a meal? Only if the effect is great enough do we then move on to consider whether there has been any discrimination.

But I think the Convention requires a different approach.   The issue should be whether that person has been prevented from participating in working life (in an employment case) on an equal basis with others. Does the design of the office make it hard for them to get around? Is the pace of work too quick for them to keep up? Are they treated with a lack of respect in the workplace that hinders their participation? The question is no longer just about their condition – it is about they way in which they are treated.

We simply don’t need to divide the population into those who are disabled and those who are not. For those with a given condition, what makes them disabled is the discrimination they suffer. Any condition, on this logic, can be a disability.

This view is already coming through in the UK. In the EAT case of Sobhi v Metropolitan Police an employee with dissociative amnesia (the only symptom of which was that she forgot she had received a police caution for theft) was held to be disabled. The EAT used the Convention to take a staggeringly wide view of what constituted a normal day-to-day activity.

What is a reasonable adjustment?

When I talk about that case to HR managers the response tends to be despairing – “if that was a disability then so is everything”. Well perhaps. But what we should be focusing on is not whether an individual is protected but what that protection means. Most cases are concerned with discrimination ‘arising out of’ disability or with the duty to make reasonable adjustments. In both cases the employer has a chance to explain why it was necessary to do as it did. Just because someone happens to qualify for protection does not mean the employer has to go to ludicrous lengths to continue employing someone who is not capable of doing the job.  The Convention defines a reasonable accommodation as one not imposing ‘a disproportionate or undue burden’ (Art 2) and Recital 17 of the Directive says:

  (17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.

We should be focusing on how employers can help employees do their jobs well and removing unnecessary barriers that get in the way. Doing that should not be dependent on an individual meeting some medical test of whether they are or are not disabled. But nor should an employer put up with a job being done badly.  This is a civil rights issue – it’s not about being nice to someone because they are disabled. .

Judging the limits of reasonableness in a reasonable adjustment will continue to be a difficult issue. But I think it is clear that the Equality Act definition of disability simply doesn’t stand up anymore. We need to scrap it and replace it with something much more in line with the social model used by the UN. If the Government doesn’t act on this, then case law will simply leave the statute behind.