Case update (1): Obesity a disability?

We updated you in our January Newsflash Obesity a disability? that the ECJ has decided that severe obesity can be a disability under EU law if it prevents full and effective participation in professional life.

We explore this decision in more detail below…

Summary: Can obesity qualify as a disability?

Yes, says the ECJ in FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13 available here.

Facts: Mr Kaltoft worked as a childminder for the Municipality of Billund in Denmark until he was dismissed in November 2010 after 15 years of service. During his employment Mr Kaltoft had a BMI of 54 (and, therefore, is considered to be severely obese according to the WHO rankings). Mr Kaltoft claimed that he had been dismissed because of his obesity preventing him from carrying out his duties, such as bending down to tie children’s shoelaces, and brought discrimination proceedings in a Danish District Court. The District Court referred the following questions to the ECJ for clarification:

• Is there a general prohibition in EU law on all forms of discrimination that includes obesity?
• Alternatively, can obesity be classified as a “disability” within the scope of the Equal Treatment Framework Directive?

The Advocate General Jääskinen held that there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right. However, in the Advocate General’s opinion, severe obesity may amount to a disability under the Equal Treatment Framework Directive. The Advocate General considered that ‘most probably’ only extreme, severe or morbid obesity (that is, a BMI of over 40) would create the limitations that amounted to a disability for the purposes of the Directive. It would be for the national court to decide if Mr Kaltoft’s obesity fell within this definition.

The case went on to be considered by the ECJ. The ECJ agreed with Advocate General Jääskinen that there is no general principle of EU law prohibiting employers from discriminating on grounds of obesity. However, the ECJ went on to say that obesity may fall within the definition of disability under EU law if it “entails a limitation resulting, in particular, from long-term physical, mental or psychological impairments which, in interaction with various barriers, hinder a worker’s full and effective participation in their professional life on an equal basis with other workers”.

Unlike the Advocate General Jääskinen, the ECJ did not suggest that only severe obesity might fall within the definition of disability and stopped short of stating that a specific BMI (body mass index) would be adopted as the cut-off point.   Whether or not an employee’s weight is so significant that he might be disabled will therefore need to be considered on a case by case basis – each case will depend on its facts.

Implications: Ultimately, obesity is not an impairment of itself, but the effects of obesity may result in a worker being disabled. In other words, not every obese person will be disabled, but those who are unable to participate in professional life on an equal basis with other workers could well be. It is not unlawful in itself to dismiss somebody just because he or she is materially overweight, but if that worker is so overweight that it creates problems in terms of mobility, endurance, mood, etc., then they may well be categorised as disabled. This will have to be judged on a case-by-case basis, focusing on the effect of a person’s obesity, rather than the cause or extent of the obesity itself.

As this opinion is consistent with the approach taken by the EAT in Walker v SITA in 2013, this is already an issue which employers have needed to deal with. However, the publicity surrounding this case may mean employers face an increase in grievances or claims.

Obese workers, employees and job applicants may claim discrimination or harassment, or contend that an employer has a duty to make reasonable adjustments.

Risk management steps could include:

• becoming more aware of the way in which obesity affects your workers;
• taking greater steps to promote healthy lifestyles for the obese;
• if you do consider that you have obese member/s of staff who could be categorised as disabled then consider making reasonable adjustments to working conditions so that these workers are not at a disadvantage compared with others – e.g. larger office furniture or work equipment, preferential parking arrangements, changes to duties/working patterns or work location to accommodate reduced mobility.