Following on from my post last month on the case of Karsten Kaltoft v Billund Kommune, the Advocate General issued an opinion yesterday that obesity can be defined as a disability for the purposes of EU law, but only if the obesity is "severe" and it has "reached such a degree that it plainly hinders participation in professional life".
By way of brief reminder, the case involved a Danish childminder, Mr Kaltoft, who claimed that his Danish local authority had dismissed him as a result of his obesity, and that this amounted to disability discrimination. Mr Kaltoft's body mass index (BMI) was 54, with a BMI of 30 or over equating to a classification of obese according to the World Health Organisation (WHO).
Mr Kaltoft brought a claim before the Danish national court, which made a reference to the ECJ on whether obesity could qualify as a disability under the EU's Equal Treatment in Employment Directive.
The Advocate General's opinion
In an opinion which could have far-reaching implications for employers throughout Europe, Advocate General Niilo Jääskinen made the following key points:
- obesity is not protected per se as a “protected characteristic” under EU law;
- “extreme, severe or morbid” obesity could constitute a disability under the Equal Treatment Directive, by creating limitations, such as problems in "mobility, endurance and mood";
- “mere” obesity (a BMI of 40 or under, as defined by the WHO) would not likely be sufficient to fulfil the criteria; and
- in the context of obesity, it is irrelevant how the individual concerned became obese. The notion of disability under the Equal Treatment Directive is objective and does not hinge upon whether it is "self-inflicted".
So what does this mean for employers?
The impact of the Advocate General's opinion will ultimately depend on the ECJ's judgment, which is likely to be later this year. However, it would be prudent for employers to keep the following key points in mind:
- Employees who are deemed to be "severely" obese may now be considered to be disabled under the Equality Act 2010, if the obesity has a substantial adverse effect on their ability to participate in work.
- Employers should be aware that this will extend their duty to consider making reasonable adjustments to the workplace for those who are deemed to have "severe" obesity.
- Employers should also be careful not to directly or indirectly discriminate against an individual because of, or for a reason related to, their "severe" obesity.
I would expect that we will likely see much future legal debate surrounding what exactly constitutes "severe" obesity, and whether it has reached such a degree that it plainly hinders an individual's participation in their professional life.
In the case of Mr Kaltoft, once we have received the ECJ's judgment, it will be up to the Danish national court to determine whether his obesity falls within this definition.
With thanks to Alice Yandle, Trainee at Farrer & Co, for contributing to this article.