A recent survey conducted by the Department of Health has revealed that 27% of adults in Northern Ireland are classed as obese. Obesity levels have been on the up over the last decade with health campaigners describing the latest survey results as a “health time-bomb”. The consequences of this for employers may be serious, with reports suggesting that obesity fuels long-term sickness and absence in the workplace, but what does the law say about obesity-related absences?
The European Court of Justice considered the matter in the recent Spanish case of Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA . Mr Ruiz Conejero, a cleaning agent, was employed by a company providing services to a hospital. Mr Conejero had worked for the company without incident from 1993. However, between 2014 and 2015 Mr Conejero was off work for a range of different reasons; including acute pain, dizziness, nausea and lower back pain. According to a medical diagnosis, these health problems were caused by a degenerative joint disease, aggravated by Mr Conejero’s obesity.
Mr Conejero’s doctor ultimately advised that his absence was a result of his obesity and provided his employer with medical certificates confirming the reason for, and duration of, his absence.
In 2015, the company dismissed Mr Conejero on the grounds of the cumulative duration of his absences. Mr Conejero challenged the dismissal decision claiming that there was a direct link between those absences and his alleged disability, being obesity. The matter was referred to the European Court of Justice (ECJ) to consider.
According to the case law of the European Court, the concept of ‘disability’ within the meaning of the relevant Directive, has to be understood as referring to limited capacity resulting from a long-term physical, mental or psychological impairment, which in interaction with various barriers, may hinder ‘the full and effective participation of the individual in the workplace’. The ECJ agreed that the Mr Conejero’s absences were linked to his obesity, which the Spanish courts regarded as a ‘disability’ under national law. The Court held that whilst combating absenteeism in the workplace is a legitimate aim, it will be difficult for employers to justify dismissing a worker on the grounds of intermittent absence, where those absences are the consequence of or attributable to a disability.
To this end, employers should be increasingly aware that an employee’s obesity may be classed as a disability if it hinders their ‘full and effective participation’ at work and should be alert to associated conditions such as asthma, diabetes, and back pain. It is important for employers to remember that the focus of enquiry should not be on the cause of the employee’s obesity but on the resulting impairments.
Employers should always obtain legal advice in relation to their duties and responsibilities before taking action up to and including dismissal against disabled employees under their absence management policies
Toni Fitzgerald-Gunn is a Solicitor specialising in employment and discrimination law in Worthingtons Commercial Solicitors, Belfast. Toni can be contacted on 02890434015 or email firstname.lastname@example.org