Case update (1): Obesity a disability?

In our recent Newsflash Obesity a disability? we updated you on the opinion of Advocate General Jääskinen in Karsten Kaltoft v Municipality of Billund available here. We also promised you further detail on the case so here it is…

Summary: Can obesity qualify as a disability?

Yes, says the Advocate General in the above case, so long as the obesity is sufficiently severe to hinder a worker from full and effective participation in their professional life on an equal basis with other workers.

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 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. Whilst the concept of disability is not defined in the Directive, the ECJ has stated that a disability in this context refers to limitations that result from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person in professional life on an equal basis with other workers. Although not every illness would fall within the scope of this concept of disability, certain illnesses, if medically diagnosed and resulting in long-term limitations, could be classified as a disability for the purposes of the Directive.

It was not necessary for the impairment to make the work impossible in order for the person to be disabled. Therefore, if obesity had reached such a degree that it plainly hindered participation in professional life, this could be a disability. 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.

According to the Advocate General, the origin of the disability was not relevant. It does not matter whether someone became obese due to simple “excessive energy intake” (over-eating) or through psychological or metabolic problems or the side-effects of medication. The notion of disability was objective and did not depend on whether it was self-inflicted, otherwise physical disabilities resulting from risk-taking in traffic or sports would be excluded from disability.

Implications: As this opinion is consistent with the approach taken by the Employment Appeal Tribunal 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. Particularly given that when the ECJ makes its decision in a few months, it will most likely follow the Advocate General’s opinion.

Ultimately, obesity is not an impairment of itself, but the effects of obesity may result in a worker being disabled. In other words 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. The Advocate General referred to this as being a more likely issue in a case of extreme, severe or morbid obesity (where a person’s Body Mass Index is 40 or over), however, it is possible that the same issues could arise with a worker of a lower BMI.

Obese workers, employees and job applicants may claim discrimination or harassment, or contend that an employer has a duty to make reasonable adjustments such as larger office furniture or work equipment, preferential parking arrangements, or changes to duties or work location to accommodate reduced mobility.