Obese People May Be Disabled, European Court Rules

The Court of Justice of the European Union has ruled that an obese person may be disabled and protected by disability discrimination laws. 

In Kaltoft v Municipality of Billund, K worked as a childminder for 15 years before being dismissed. During his employment, he had a BMI of 54, categorising him as Class III obese (or severe, extreme or morbidly obese) under the World Health Organisation classification. K claimed he was dismissed because of his obesity and brought discrimination proceedings in a Danish court. 

The Danish court asked the ECJ whether discrimination on grounds of obesity is unlawful or alternatively whether obesity can be classified as a 'disability' under the Equal Treatment Framework Directive.

Following the Advocate General’s opinion in July, the ECJ has agreed that whilst discrimination on grounds of obesity is not unlawful per se, obesity may be a disability and an obese person may therefore be protected by disability discrimination laws. Whether an obese person is disabled will depend on whether their obesity results in a physical or mental impairment which hinders their ability to participate in employment on an equal basis with other workers on a long term basis. This might be due, for example, to reduced mobility or the onset of a medical condition which prevents them carrying out their work or causes them discomfort whilst doing so. 

The fact that the person may have contributed to the onset of their disability and that it might be self-inflicted is irrelevant to the question of whether they are disabled. 

It was for the national court to determine whether K’s obesity amounted to a disability. 

When the Advocate General gave his opinion, he suggested that those classified as WHO Class III obese are likely to suffer limitations on their ability to participate in employment on an equal basis with other workers and therefore be disabled. The ECJ did not comment on this, but the key issue in each case will be whether the particular employee has a physical or mental impairment resulting in limitations on their ability to participate in employment on an equal basis with others. 

For many people, their obesity does not affect their work in any sense and they would not be classed as disabled. 

The biggest impact for employers is likely to be in the area of the duty to make reasonable adjustments. Employers might have to make adjustments to a person’s role, for example reducing standing time; or to working hours – if they find it difficult to stand then it might be a reasonable adjustment to change working hours so they commute outside the rush hour when it is easier to get a seat; or to where the employee works – so that in offices where there is no lift they are based on the ground floor. 

Employers will also need to take care when it comes to managing performance and attendance – if there is a link between poor performance or absence and obesity they may face a disability discrimination claim and will need to be able to justify the action taken.