As we reported in July, the Advocate General’s view in the case of Karsten Kaltoft v Billund Kommune was that obesity could constitute a disability for the purposes of EU law. Whilst not automatically a protected characteristic per se, its impact on general health and wellbeing could qualify as a disability.
The ECJ has today confirmed that if an individual’s obesity hinders their ‘full and effective participation’ in their working life, then it can count as a disability (irrespective of the origin of the condition and whether or not the employee is to ‘blame’ for it). Despite the slightly frenzied media reporting of the decision (how many headlines have you read proclaiming that obesity ‘is’ now a disability?), in many senses it changes little – the ruling is after all not that obesity itself is necessarily a disability, but that the effects of it can be, depending on the precise work the employee is carrying out. So workers who suffer (for example) depression, or mobility issues on account of their weight can be protected (if the other qualifying conditions are met), which doesn’t really alter the existing legal landscape. The distinction is really now that it isn’t necessarily going to be the case that an employee has to point to another related medical condition before being held to be disabled: rather, if the obesity itself reduces participation in working life via (eg) reduced mobility, then that may be sufficient to constitute a disability. So, as it always has been with disability issues, the assessment will be fact specific and indeed, may well depend on the precise nature of an individual’s role as to whether or not they qualify. An obese employee with a desk job may not be disabled, but someone like Mr Kaltoft (a child minder allegedly unable, due to his weight, to run round after his charges and to carry out other aspects of their care) could well be. The decision in his particular case has now been remitted to the Danish court to establish whether that is in fact so, based on his specific circumstances.
What the ruling may well do is increase awareness among employers of their duties and obligations to obese employees and lead to reasonable adjustments being considered, for example in relation to seating and access issues. Representatives from the British Obesity Society and National Obesity Forum have criticised the finding – suggesting that it is likely to lead to greater friction between employees and perhaps disincline employers to hire obese staff for fear of legal repercussions and a need to make adjustments. The good news for all of us, however, is that the ECJ has rowed back from some of the rather blunt tools which featured in the Advocate General’s opinion – particularly the statement that though obesity would not normally be a disability, someone with a BMI of over 40 might be considered as disabled if the effects hindered his or her participation in professional life. This bright line test has happily not found favour in the final judgment – which will come as a relief to employers wondering how on earth to broach the subject of BMI assessment with employees.
But with one in four people in the UK classified as obese, it is very likely that the publicity around the decision will lead to an increase in claims, with employment tribunals having to analyse the distinction between the condition itself and its impact on ‘full participation’ in working life.