Could Obesity be classed as a Disability?

The Advocate-General’s recent decision in the case of Kaltoft v Municipality of Billund C-354/13, has highlighted the question of whether or not obesity could be classed as a disability. The opinion was given on July 17th 2014 following a hearing which took place on June 12th 2014.

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.

The Claim

Mr Kaltoft brought a claim of disability discrimination in the Danish court who referred to the European Court of Justics (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. The hearing took place on 12 June 2014 and the Advocate General gave his opinion on 17 July 2014.

Decision

According to the opinion of  Advocate General Jääskinen, obesity is not considered to be a protected characteristic in it’s own right under the EU Equal Treatment Directive. There is no general prohibition under EU law on obesity discrimination.

Further,  it is 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.html)

In the Advocate General’s opinion it is only WHO Class III with a  BMI (Body Mass Index) of 40 which could create problems with mobility, endurance and mood that may amount to a disability.

Interestingly, the Advocate-General implied that whether or not the condition was self-inflicted should not impact upon a decision as to whether or not a person may have a disability. He states that;

“the notion of disability under Directive 2000/78 is objective and does not depend on whether it is ‘self-inflicted’ in the sense that the person has contributed causally to the acquisition of the disability. Otherwise, physical disabilities resulting from conscious and negligent risk-taking in traffic or in sports, for example, would be excluded from ‘disability’ in the sense of Article 1 of Directive 2000/78.”

Moving Forward:

Following the Advocate General’s opinion the ECJ must now consider the same questions at a full hearing, and may well follow this opinion but does not always do so. Should the ECJ follow this decision, employers may have a duty to make reasonable adjustments and take steps to avoid discrimination of morbidly or severely obese employees. This could have a significant impact on employers and employees, and it is recommended that specialist advice be taken on this matter.

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.