Following on from Advocate General’s opinion in August 2014, the European Court of Justice (ECJ) has now delivered its judgment in a key case on the topic of obesity and disability. The case concerned Mr Kaltoft, a Danish childminder who claimed that his dismissal from his job was due to his obesity and that this constituted unlawful discrimination under the EU Equal Treatment Framework Directive. Mr Kaltoft weighed over 25 stone and had a Body Mass Index (BMI) of 54.
The ECJ agreed with the Advocate General that there is no general principle in EU law which prohibits discrimination against a person on the grounds of their obesity. However, it found that obesity could amount to a disability where its impact is to hinder a person’s full and effective participation in professional life on an equal footing with other workers. Unlike the Advocate General, the ECJ did not indicate that obesity would only qualify as a disability where it is severe (i.e. a BMI of more than 40). Instead each case should be considered on its particular facts. The origins of or reasons for a person’s obesity are irrelevant for determining disability.
In light of the decision, UK employers should be aware of the risk that obese employees could qualify as disabled. Where employers are unsure if an obese employee is disabled they should consider obtaining medical evidence from a GP or other medical specialist.
All disabled employees are protected from discrimination and employers have a duty to make reasonable adjustments if a disabled employee or job applicant is put at a substantial disadvantage as a result of the employer’s policies or a physical feature of their premises. Where an obese employee is disabled, reasonable adjustments may include providing larger chairs or office equipment and reserving a designated parking space close to the employee’s workplace.