One Step Further to Obesity Being Considered a Disability

In the UK, the European Equal Treatment in Employment Directive is implemented by the Equality Act 2010. This Act prohibits discrimination on various prescribed grounds, including disability.

On the 24th July 2014 the Advocate General stated that obesity may fall within the definition of “disability” for the purposes of discrimination law where an employee is so overweight that “it plainly hinders participation in professional life.”

The Advocate General’s opinion follows on from the case of Karsten Kaltoft, a child-minder who was dismissed by the Danish state on the grounds of a decline in the number of children requiring care. Mr Kaltoft alleged his employment had been terminated due to his weight and that this was discriminatory. The Danish Court considering the case referred it to the European Court of Justice(ECJ) to clarify whether obesity can be considered a disability and therefore qualify for protection under the Equal Treatment in Employment Directive.

The Advocate General points out that whilst disability is not defined in the Directive past cases have referred to any physical, mental or psychological impairment that would inhibit fruitful participation of the person in their working life “on an equal basis with other workers.” It is the Advocate General’s view that severe obesity would create sufficient limitations to fit this definition. He stated that in his opinion only those with a BMI over 40 could qualify as disabled.

The Advocate General’s view is not binding on the Court of Justice but it would be surprising for the Court not to follow his opinion, although it may refine it in its own judgement. Following this judgement, the case will be returned to the Danish Courts who must make a decision in accordance with the EJC ruling. UK Tribunals will also be bound by the same ruling if a similar issue is raised.

For the moment UK employers just need to be aware that the issue of obesity is rapidly gaining profile.

Finally it is significant to note that the Advocate General also issued a reminder that it is “irrelevant” that being overweight may be considered “self inflicted.”  His point of view draws parallels with an injury suffered while engaging in a dangerous sport, which could be regarded as a disability despite its cause.

Will No2NP succeed in their Judicial Challenge or will every child in Scotland have a “Named Person” in 2016?

The Children and Young People (Scotland) Act 2014 received Royal Assent on 27 March 2014 and will be rolled out across the country in 2016.

The Act includes a provision to assign a “Named Person” (probably a teacher or health visitor) to every child / young person in Scotland under the age of 18.  The Named Person will have a duty to:

  • Advise, inform or support the child / young person and the parents of the child / young person
  • Help the child / young person or parents of the child / young person to access a service or support system
  • Raise a matter about a child / young person with a service provider or relevant authority.

This controversial Act is now subject to legal challenge by a campaign group, No to Named Persons (No2NP), which includes several hundred parents, academics and professionals concerned about the proposed imposition of a Named Person.

Of course, parents do not need to accept help or advice from the Named Person but the Named Person can act independently of parents in raising concerns they might have about a child / young person to outside agencies if they believe the child / young person to be at risk.

No2NP believe the role of parents will be diminished by the policy and that it constitutes unjustified interference with an individual’s rights under the European Convention on Human Rights.  Article 8 of the ECHR states that:

  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals or for the protection of the rights and freedoms of others.

The position of the Scottish Government is that the legislation will stop vulnerable children  from slipping through the net  and will provide families in need with assistance that they might find difficult to obtain in other circumstances.

We will have to wait for the outcome of the review requested by No2NP , whether it will be successful remains to be seen, but certainly this legislation and challenge will have implications for the vast majority of families in Scotland.

Mitchells Roberton Solicitors Support Mary’s Meals

Mary's Meals Backpacks

Mary’s Meals is a registered charity that sets up school feeding projects in some of the world’s poorest communities. It is a simple idea – by providing a daily meal in a place of education, chronically poor children are attracted to the classroom where they can gain a basic education that provides an escape route from poverty.

Mary’s Meals was founded in 2002 and has grown from its first feeding operation of 200 children in Malawi to a world-wide campaign providing free school meals in hundreds of schools and feeding over 860,000 children daily.

One of the charity’s high profile projects is the Backpack Project and it is this project that the staff of Mitchells Roberton supports. With staff donations we purchase backpacks and fill each one with a notebook, pencils, coloured pencils, a rubber, a pencil sharpener, a ruler and a pencil case. We also put into each pack a toothbrush, toothpaste, soap and a towel.  Additionally a new outfit, sandals, a ball and a spoon are included.

Margaret Ritchie, our receptionist organises the firm’s efforts. She says “I believe that a backpack may often be the first gift received by a child attending one of Mary’s Meals schools. We all hope that the bag will help to make a practical difference to the child receiving it. It’s a lovely project to be involved in and we will continue to contribute as best we can.”

Since the beginning of 2011 Mitchells Roberton has donated 450 filled backpacks to be gifted to children receiving Mary’s Meals.