Testing the boundaries of disability discrimination

by DLA Piper

Guy Lamb, a Partner in our Leeds  office, comments: Two cases this month have raised questions as to how far the protection of disability discrimination law should extend.

 Reasonable adjustments

 In Hainsworth v Ministry of Defence, the Court of Appeal rejected an attempt to increase the scope of so-called associative discrimination. In Coleman v Attridge Law the EAT held that protection from direct disability discrimination should extend to employees who are associated with a disabled person. Protection from direct associative discrimination was subsequently extended to all protected characteristics in the Equality Act 2010. In Hainsworth the claimant (supported by the Equality and Human Rights Commission as interveners) sought to argue that the duty to make reasonable adjustments also ought to extend to employees who are associated with a disabled person. Ms Hainsworth was employed as a civilian teacher attached to the British armed forces and required to provide her services in Germany. She asked to be transferred to the UK in order that her daughter, who has Downs Syndrome, could receive specialist education. When her request was rejected she brought the claim for disability discrimination claiming that it would have amounted to a reasonable adjustment to allow the transfer. The Court of Appeal held, however, that the duty to make reasonable adjustments only arises in respect of employees and prospective employees who are themselves disabled; there is no associative duty to make reasonable adjustments. 

Is obesity a disability?

The Equality Act 2010 has already been interpreted as protecting employees who suffer from physical and mental conditions which result from obesity (in the 2012 EAT case Walker v Sita Information Networking Computing Ltd),  but obesity has been rejected as a disability in its own right by the UK courts. However, in a case which was heard last month the ECJ was asked to determine a reference which could significantly extend the scope of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) because it was deemed that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.

If the ECJ rules that obesity can be a disability, the impact could prove substantial for UK employers. The UK has one of the highest percentages of obesity in Europe; 64% of adults are classified as being overweight or obese.  The Equality Act would need to be applied very differently if employers are required to treat obesity the same as any other physical or mental impairment. Employers would be prevented from treating an employee less favourably or dismissing the employee because of their weight. The most important impact, however, would almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. Employers may be expected to provide specialist equipment or furniture, parking or other travel assistance and adjustments to sickness absence policies.

The latest statistics published by the Government indicate that the number of disability discrimination claims has fallen substantially following the introduction of fees, but as disability claims are among the most difficult and expensive to defend and awards can be higher than in other jurisdictions, any extension of the scope of disability discrimination would not be welcomed by employers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.