Lord Tebbitt has raised the worrying possibility of the Army apparently being forced to accept overweight recruits. He writes in the Daily Telegraph (19 Dec):
The half-baked nonsense from the European Court of Human Rights about the rights of very fat people is already bad enough, but perhaps the Army will soon be called upon to put more fat people into the front line.
But is that a serious prospect, or just another swipe at "Europe" and "human rights"?
This week's "landmark" decision that the effects of severe obesity could constitute a disability is understandably giving concern to many employers, and could have unintended consequences. The court did not decide that the claimant, a 25 stone (160kg) Danish childminder is actually disabled, but referred the case back to the Danish court to determine whether the effects of his obesity fall within the definition of disability.
What the Equal Treatment Directive actually says
As the decision was taken by the European Court of Justice in terms of something called the European Equal Treatment Framework Directive, the case had nothing really to do with the European Court of Human Rights, or with the UK Human Rights Act.
The Equal Treatment Directive says unambiguously that
This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.
Note that the clause applies both to recruitment, and to continued employment. The treatment of personnel who become obese, unfit or disabled while in service is a big subject in itself.
European Convention of Human Rights (ECHR)
What then of the ECHR, as suggested by Lord Tebbitt?
Neither disability nor obesity are mentioned in the Convention, but the human rights court has accepted that disability comes within the scope of Article 14. The Article covers "discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The armed forces aren't exempt from Article 14, which is why the UK was eventually required to allow "known or suspected" homosexuals to serve in the armed forces.
There is one Strasbourg case involving disability and military service, but it centred on a payment levied by Switzerland in lieu of conscription.
Calls to allow disabled people to join
In 2009 the Ministry of Defence rejected advice from UK's Equality and Human Rights Commission that the ban on disabled people joining the armed forces is discriminatory and that all three armed forces should allow disabled people to serve. Similar calls have been made in Parliament from time to time.
BAFF agreed with the MoD and disagreed with the Equality and Human Rights Commission on this matter. Where it is possible for disabled people to be employed in uniform, they should be those injured in service, who bring experience, credibility and the established military ethos to the role. Where the MoD does modify any standards to allow particular people to join, we think that should only happen on grounds of operational effectiveness.
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