Helen Frankland – associate solicitor in the employment team at Slater Heelis – asks: Is obesity a disability?

In the Danish case of Kaltoft V Municipality of Billund, the European Court of Justice (ECJ) recently considered the question as to whether obesity can amount to a disability for the purposes of employment law protections.

Mr Kaltoft was a Danish child minder and had worked for a children’s nursery for 15 years. He was dismissed on 22nd November 2010 on the grounds of redundancy. At this time, he weighed 25 stone and had a body mass index of 54. This categorised him as having class three obesity under the World Health Organisation Classification i.e. severe, extreme or morbid obesity. He had been provided with financial assistance between 2008 and 2009 by his employer in order for him to attend fitness sessions but unfortunately this had not assisted him.

Mr Kaltoft claimed that he had been dismissed because of his obesity and he brought proceedings against his employer in the Danish courts. The ECJ was asked by the Danish courts to consider whether obesity amounts to a disability. The EU Equal Treatment Framework Directive sets out a framework for equal treatment in employment and covers matters such as race, religion and sex but does not specifically cover obesity.

The ECJ concluded that severe obesity could indeed amount to a disability under the Equal Treatment Framework Directive and that whether someone who is obese is disabled for the purposes of employment protections will depend on the particular circumstances. The ruling stops short of declaring obesity to be a protected characteristic against which all discrimination is prohibited. However, the ECJ stated that it could be if it restricts an individual’s ability to actively and fully engage in their working life.

The question in each particular case will be whether the individual in question suffers from a long-term limitation as the result of a physical, mental or psychological impairment that may hinder their full and effective participation in professional life with other workers. The answer to this question will depend on the severity of the condition and its impact on the individual in question and the crucial question is whether the individual is suffering from a long-term impairment.

So what does this mean for employers? Obesity does not, in itself, mean that an individual is disabled. However, the Kaltoft ruling confirms that the effects of obesity on an individual may make it more likely that the individual suffers from impairments that would be protected under employment legislation. For example, if an individual’s weight means that they suffer from diabetes or severe mobility problems, they are likely to be regarded as disabled and employers will need to consider their duty to make reasonable adjustmentsfor their overweight workers. By way of example, an employer may need to consider providing larger chairs, providing parking close to an individual’s place of work or locating an individual within easy access to facilities.