Could Obesity be Classed as a Disability Update

You may recall that earlier this year, we publicised an article discussing the case of Kaltoft v Municipality of Billund C-354/13. This case was particularly interesting as it opened up the question of whether or not obesity could be classed as a disability.

Background
Mr Kaltoft was a childminder for the Municipality of Bilund (in Denmark) for 15 years; looking after other people’s children in his own home. At the time of employment, Mr Kaltof had a BMI of 54 and weighed over 25 stone. According to the classification of the World Health Organisation, this would fall under WHO Class III obesity, which is sometimes referred to as severe, extreme or morbid obesity.

On 22nd November 2010, Mr Kaltoft was dismissed with the reason stated as a decline in the number of children requiring care. Nonetheless, the company had employed several childminders, and failed to provide an explanation as to why it was Mr Kaltoft who had been selected for dismissal. Mr Kaltoft believed that the reason he was selected was due to unlawful discrimination on the grounds of his weight. This was denied by his employer, however it is noted that Mr Kaltoft’s obesity had been discussed at the dismissal hearing

Mr Kaltoft brought a claim of disability discrimination in the Danish court. Following this, we publicised the Advocate General’s Opinion which was that obesity was not considered to be a protected characteristic in it’s own right under the EU Equal Treatment Directive, and that there was no general prohibition under EU law on obesity discrimination.

 
It was further stated that,

 
“in cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, 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.” (http://www.bailii.org/eu/cases/EUECJ/2014/C35413_O.htm

ECJ

In the previous article, we explained that following the Advocate General’s opinion the ECJ would then consider the same questions at a full hearing. The Danish court referred to the European Court of Justice (ECJ) to clarify two points:

• whether obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market
• whether obesity can amount to a disability under the Directive. (http://www.bailii.org/eu/cases/EUECJ/2014/C35413_O.html)

On 18th December, 2014 the European Court ruled that whilst discrimination on the grounds of obesity may not, in itself be prohibited in law, should the condition hinder the ‘full and effective participation’ at work, then it could count as a disability.

 
The court did not, however agree with the Advocate General’s opinion that those who fell within WHO Class III with a BMI (Body Mass Index) of 40 specifically, would fall into the category of a disability; rather the court would have to make a decision based up on the merits of each case.

Moving Forward
As highlighted in the previous article, this decision is likely to have a significant impact on UK employers and it would be advisable to seek advice on this matter. Employers may for example, be required to consider making reasonable adjustments if applicable.

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes  only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.