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Obesity -the new disability?

About a quarter of the adult population in the UK is clinically obese, but to what extent is obesity a disability and what does this mean for employers?

Following an opinion of Advocate General Jääskinen (AG) in the case of FAO acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund, a person with morbid obesity may soon be deemed to be disabled if their obesity has a real impact on their ability to participate fully and effectively in professional life.

If the European Court of Justice (ECJ) agrees with this opinion, employees who are morbidly obese will be protected from discrimination and will be entitled to have reasonable adjustments made to their workplace.

Background

Article 21 of the EU Charter of Fundamental Rights prohibits "discrimination based on any grounds such as...disability".

The Equal Treatment Framework Directive sets out general principles for preventing discrimination in employment. In particular, it focuses on a number of protected grounds, including disability (which is not defined).

In the UK, under the Equality Act 2010, a person is considered to have a disability if he or she has a physical or mental impairment and it has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Employees who are classed as disabled have a right not to be treated less favourably than other members of staff as a consequence of a physical or mental disability. There is an obligation on employers to make reasonable adjustments to accommodate a worker with a disability.

Facts

In this case, the claimant, Mr Karsten Kaltoft, was a childminder for the Municipality Billund in Denmark (the local city council). Mr Kaltoft was dismissed in 2010 allegedly as a result of being unable to tie up the shoelaces of children under his care. Mr Kaltoft weighs 25 stone (160kg) and has a Body Mass Index (BMI) of 54.

Mr Kaltoft brought a discrimination claim in the Danish District Court on the basis that to dismiss him on the grounds of his weight amounted to discrimination.


The ECJ was asked to rule on:
  • whether EU law prohibited discrimination on the grounds of obesity itself; and/or
  • whether obesity was considered to be a disability.

Advocate General's opinion

In giving his opinion on how and why obesity could be a disability, the AG, said that 'obesity' in itself is not a protected characteristic.

The AG went on to consider whether or not obesity fell within the definition of a disability. He stated that the EU definition of disability covers a situation where a physical or mental condition makes "the carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eyesight or hearing."

Going further, the AG considered that severe, extreme or morbid obesity – classed by the World Health Organization ("WHO") as a BMI of over 40 - could be a disability in situations where "the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers...plainly hinders participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails."

With a BMI of 54, Mr Kaltoft clearly comes within this bracket of severe obesity.

Comment

The ECJ will, in due course, consider Mr Kaltoft's case. The ECJ is not obliged to follow the AG's opinion but they normally do.

If the ECJ does agree with the AG then only 'severe, extreme or morbid' obesity is likely to be deemed to be a disability.

Employees who fall into this category would not need to show that they suffer from the 'effects' of obesity, they will only be required to establish either that their BMI exceeds a certain level, or that their obesity "hinders participation in their professional life", depending on how the ECJ decides to define 'obesity'.

This does not mean that every person who falls into the category of 'severe, morbid or extreme' obesity will suddenly be classed as disabled for the purposes of employment law, but rather that if their obesity has a real impact on their ability to participate in work, they may be classed as such.

If the ECJ rules in Mr Kaltoft's favour, employers in the UK would be under a legal duty to make 'reasonable adjustments' in order to accommodate any specific requirements of a morbidly obese employee, for example by providing priority parking spaces, specially adjusted chairs, desks or building entrances or by providing healthy meals in staff canteens. Failure to do so could give rise to claims of indirect discrimination.

Employers should start considering what reasonable adjustments they may be required to make in circumstances where severely obese employees are unable to participate and perform their job.

It would also be prudent to review employee handbooks, policies and equality and diversity training to ensure that employees who fall within this category are protected by any anti-harassment and/or bullying policies.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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