Severe Obesity May be a Disability

Obesity may amount to a disability for EU discrimination law purposes, but only if it is severe, according to the Advocate General of the European Court of Justice.

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 there is a general prohibition on all forms of discrimination in EU law (so that discrimination on grounds of obesity is unlawful) or alternatively whether obesity can be classified as a 'disability' under the Equal Treatment Framework Directive.

The Advocate General rejected the argument that discrimination on grounds of obesity is unlawful in itself, but considered that obesity might be a disability under the Equal Treatment Framework Directive where it 'hinders full and effective participation in professional life on an equal basis with other workers'. In the Advocate General's opinion, it was probable that only WHO Class III obesity will create limitations, such as problems with mobility, endurance and mood that amount to a disability for the purposes of the Directive. He also considered that the cause of the obesity and the fact that it might be self-inflicted is irrelevant. The Advocate General’s opinion in this case is not that surprising and it seems likely that the ECJ will agree with the Advocate General when it comes to rule on this question. The fact that the Advocate General only considered that severe obesity, rather than all forms of obesity, might constitute a disability will be welcomed by employers. This seems to accord with the EAT decision in Walker v Sita Information Networking Computing Limited under the Equality Act 2010 where the EAT found that obesity itself is not a disability, although the effects of obesity may make it more likely that a person has impairments within the meaning of the legislation (e.g. diabetes or mobility problems).

If the ECJ agrees with the Advocate General, 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.