In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
Under the Equality Act 2010 (previously the Disability Discrimination Act 1995), a person has a disability for discrimination purposes if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The employee in the case, who weighed 137 kilograms (21 ½ stones), suffered from "functional overlay" compounded by his obesity, which caused him symptoms such as asthma, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, anxiety and depression.
The Employment Tribunal initially found that the Claimant was not disabled as the Tribunal had not been able to identify a "physical or organic cause" for his conditions other than his obesity. The EAT overturned this decision and pointed out, that the test for establishing disability is not dependant on establishing a cause for the impairment. What the courts need to concentrate on is whether the employee has a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities, which the EAT found was the case.
This case was very fact specific and the EAT highlighted in its judgment that obesity is not in itself a disability under discrimination law however, it may make it more likely that someone is disabled.
Obesity is of course an increasing problem in society and a survey published in 2012 found that just over a quarter of all adults (26%) in England are obese. This poses problems for employers because of the well-documented links between obesity and a range of medical conditions, which mean that obese employees may be more likely to be absent from work sick, and there may also be certain tasks which they find more difficult to carry out.
Our advice would be, whether dealing with any employees, to ensure that you understand whether they suffer from any physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities, and may therefore be the cause for their absence, inability to fully carry out their work, behaviour or any other inappropriate conduct at work. If they do, you need to consider whether there are any obligations that you have towards that employee under the Equality Act so that you do not unintentionally discriminate against them.
For more information
For more information or advice about the Equality Act, in particular, the employees’ rights and your obligations, please contact Anna Dabek on 0121 212 7494 or firstname.lastname@example.org.
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