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Summary: In considering whether a person is disabled, should the focus be upon the cause of the person’s symptoms (such as obesity) or upon their effect? It is the latter, says the EAT in the case of Walker v Sita Information Networking Computing Ltd, which is available here.
Facts: Mr Walker, who weighed over 21 stone, brought a discrimination claim against his employer on grounds of disability. He suffered from numerous health problems, including asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach complaints, anxiety and depression. These were compounded by his obesity and led to multiple symptoms which affected his daily living, such as pains in his head, abdomen, leg, feet, constant fatigue, and poor concentration and memory.
The Tribunal found that he was not “disabled” within the meaning of disability discrimination legislation (now contained in the Equality Act 2010) and noted that an occupational health specialist had not been able to identify a “physical or organic cause” for his conditions other than his obesity.
Mr Walker appealed to the EAT.
The EAT rejected the Tribunal’s approach and held that Mr Walker was disabled. The EAT stressed that a Tribunal should not focus on what the cause of an impairment may be – it did not matter that there was no pathological, underlying cause (or causes) of the claimant’s various impairments. The Tribunal had to consider if the mental or physical impairments were genuine and that the other constituent parts of the definition of “disability” were met. However, the EAT rejected Mr Walker’s argument that his obesity in itself rendered him disabled.
Implications: Obesity is not in itself a “disability” for discrimination law purposes. It is the impairments themselves that must be considered and it is not necessary to establish the cause. Therefore obesity may make it more likely that an individual has impairments sufficient to bring him/her within the definition of disability.
Employers should note from this case that the obligation to comply with disability discrimination law, such as the need to make reasonable adjustments, will apply even in cases where an employee’s medical condition stems from obesity. There may be instances where an employee is no longer able to carry out his/her role due to having gained weight and employers should take care making a decision about making reasonable adjustments and continued employment.
Statistics show that over 60% of adults in the UK are obese and, in 2010, research showed that children in the UK were spending double the amount on sugary products, snacks and treats as those living in the United States. Further, this case mirrors the developing trend in the US, where the notion that obesity amounts to a disability under law is gaining momentum. In light of this employers might want to consider what steps they can take, not just to deal with obesity-related issues, but to prevent them in the first place: such as encouraging exercise and healthy eating through a variety of initiatives such as cycle to work schemes, discounted gym membership and providing free fresh fruit at the office.
Summary: Can employers establish at Tribunal that the reason for a dismissal is redundancy even if they also have held concerns about the employee’s performance or conduct? Yes, says the EAT in two recent decisions.
The cases: 1. Malekout v Ahmed & ors (t/a The Medical Centre) and 2.Fish v Glen Golf Club are available here and here.
Facts:
Implications: These cases are helpful to employers in that the existence of concerns about performance or conduct does not rule out a redundancy dismissal being accepted by a Tribunal. Further, the EAT will be slow to interfere with a Tribunal’s assessment of causation so long as it has properly considered all the facts.
However, be warned that the Tribunal will generally carry out a thorough investigation of the evidence before it decides on what grounds an employee has been dismissed and it is too simplistic to conclude that a Tribunal will not look behind the employer’s reason for making a redundancy. It can very much be “˜pot luck’ as to what a Tribunal may decide – the Malekout case, in particular, could very easily have been viewed as the employer engineering a sham “redundancy” scenario to dismiss a poorly performing employee and a different Tribunal might well have viewed it as such.
Overall, both cases seem to point to the fact that, although Tribunals will look behind an employer’s reason for making a redundancy, they may not deliberate too hard on questions of causation, where redundancy is one of two or more plausible reasons for dismissal. Therefore employers should carefully document the background to such dismissals so that it can be clearly seen that redundancy is the principal reason for the termination.
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