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Is obesity “the new disability”?

04 August 2014

The Advocate General (the adviser to the European Court of Justice (ECJ) has delivered a judicial opinion on the extent to which EU law protects obese workers from discrimination.

The case before the Advocate General was Kaltoft –v- Billund C-354/13, which concerned Mr Kaltoft, who worked as a child-minder for the Municipality of Billund in Denmark, until he was dismissed in November 2010 after 15 years of service. During his employment, Mr Kaltoft weighed in at more than 25 stone (160 kg) and had a BMI of 54. He claimed that he had been dismissed because of his obesity and brought discrimination proceedings in the Danish courts. The Danish judiciary asked the Advocate General if obesity can be captured within the prohibition on discrimination in EU law and whether it can be classified as a “disability” within the scope of the EU Equal Treatment Directive.

Although there is no general principle of EU prohibiting discrimination on the grounds of obesity, the Advocate General found that “if obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability”. This would mean that severe or morbid obesity (applicable to persons with a BMI of over 40) may now fall within the definition of disability expressed by the EU Equal Treatment Directive. The Advocate General was also keen to state that “the origin of the disability is irrelevant [and] does not depend on whether the applicant has contributed causally to the acquisition of his disability through ‘self-inflicted’ excessive energy intake”.

The Advocate General’s decision is not in itself binding but decisions are usually followed by the ECJ, whose resulting judgements apply to all Member States of the European Union, including the UK. The ECJ will now consider the case and if it agrees with the findings of the Advocate General, then the case will be remitted to Denmark to decide whether Mr Kaltoft’s obesity met the court’s definition of disability.

The Equality Act 2010 implemented the EU Equal Treatment Directive into UK law. Section 6(1) of the Act provides that a person has a disability for discrimination purposes if they have a “physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

The UK tribunals have not yet recognised obesity as a disability but the EAT recently debated the issue in the case of Walker –v- Sita Information Networking Computing Limited UKEAT/009/12. Although obesity did not in itself mean that the claimant was disabled, the effects of obesity may make it more likely that a claimant has impairments such as diabetes or mobility problems, which could bring him or her within the definition of disability.

Figures released by the Department of Health in March 2013 revealed that 61.9% of UK adults are overweight or obese. It is well documented that people who are overweight carry a higher risk of developing certain life limiting conditions such Type 2 diabetes, Coronary Heart Disease and certain cancers.

The prevalence and risk factors attached to obesity together with these intriguing developments in Luxembourg and in the UK EAT pose a number of questions for UK employers, not least whether there is anything that business owners and Company boards can do to encourage the well-being of workers and promote a healthy workforce.

If obesity is in fact the “new disability”, then employers may find themselves obliged to make reasonable adjustments to enable participation of those who are affected, for example by providing car parking spaces close to office entrances and exits, amending duties or adapting the physical working environment.

Jennifer Cooper
Barlow Robbins