Disability discrimination

10 Sep 2014

In 2013, the Danish courts referred the case of Kaltoft v Municiaplity of Billund to the Court of Justice of the European Union (CJEU) to determine whether obesity constitutes a disability.

The case concerned Mr Kaltoft, a childminder who alleged that he was dismissed because of his weight. Mr Kaltoft argued that (1) obesity was covered by a general prohibition under European Union law against discrimination in the workplace; and (2) obesity was a form of disability.

The CJEU's ruling is not expected for another 4 – 6 months; however, in the meantime Advocate General Jääskinen has expressed his opinion on the case.

Jääskinen found against Mr Kaltoft's first argument, however, in respect of the latter concluded "in cases where the condition of obesity has reached a degree that it… plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability". He went on to clarify that only morbid obesity (measured by a Body Mass Index in excess of 40) was likely to amount to a disability.  In this case, Mr Kaltoft weighs 160kg (25 stone), with a Body Mass Index of 54.

Jääskinen also reiterated that the origin of a disability is irrelevant; it "does not depend on whether the applicant has contributed causally to the acquisition of his disability through 'self-inflicted' excessive energy intake".

Our view…

Whilst an Advocate General's opinion is not binding on the CJEU, it is usually followed. If this is the case, and the CJEU upholds Jääskinen's opinion, its judgement will be binding across the entire European Union. In the UK, this will mean that morbidly obese employees are likely to fall within the definition of disability if their obesity prevents them from fully participating in working life. It will also mean that the duty to make reasonable adjustments is triggered. This could include providing car parking spaces close to the workplace entrance and special chairs/desks or even amending an employee's duties to include less walking or travelling.

Our advice, don't panic – wait and see what the CJEU's decision is later this year. Nevertheless, you should remain mindful of the fact that whilst obesity is not, in itself, currently a recognised disability for the purposes of the Equality Act 2010, it may make it more likely that someone is disabled as arguably its symptoms can cause a mental or physical impairment to the employee in question.  The 2013 case of Mr Walker v Sita Information Networking Computing Ltd is a good example of this.