July 18, 2014

Employment e-Brief: Obesity may be a disability

In Kaltoft v Municipality of Billund (which is in Denmark), the Plaintiff has a Body Mass Index (BMI) of 54. Or to put it another way, he is 25 stone.

The World Health Organisation (WHO) ranks obesity into three classes by reference to the BMI. Persons with a BMI of 30 to 34.99 are Obese class I, persons with a BMI of 35 to 39.99 are Obese class II, and persons with a BMI in excess of 40 are Obese class III, which is known as severe, extreme or morbid obesity.

The Plaintiff brought a claim before a Danish court, that he was dismissed from his employment of 15 years as a childminder because of his obesity which he said amounted to unlawful disability discrimination.

The Danish court made a reference to the European Court of Justice (ECJ) and asked whether obesity:

  • falls within a general prohibition in EU law covering all forms of discrimination; and
  • is a form of ‘disability’.
  1. The Advocate-General did not accept that there is a principle of EU law which in itself prohibits employers from discrimination on the ground of obesity in the labour market. Although EU law might be argued to prohibit discrimination generally, there is no prohibition on obesity discrimination.
  2. As for disability, the Advocate General concluded that obesity may meet the definition of disability but only if it is ‘severe’. The condition must have reached such a degree that it “plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails”. In the Advocate-General’s opinion “‘mere’ obesity in the sense of WHO class I obesity is insufficient and most probably only WHO class III obesity, will create limitations such as problems in mobility, endurance and mood that amount to a disability”.
  3. The Advocate-General also considered whether causation of the disability is relevant. He concluded it was irrelevant because “the notion of disability is objective and does not depend on whether it is ‘self-inflicted’ in the sense that the person has contributed causally to the acquisition of the disability. Otherwise, physical disabilities resulting from conscious and negligent risk-taking in traffic or in sports, for example, would be excluded from being ‘disabilities’”.

The Advocate-General’s opinion is not binding but the ECJ usually follow it. The judgment is likely to be in late 2014/early 2015.

Tam Fry, of the National Obesity Forum, said: “If this opinion becomes the Court’s ruling, then the law is either an ass or barking mad. To give morbidly obese people the right to sue their employers if they become so fat that they cannot do the job they have signed up to do is beyond belief. The mind boggles as to the likely cost to employers if the Court decides to accept this opinion”.

If obesity were to be a disability, reasonable adjustments may be required for obese employees such as larger seats and car park spaces closer to the office. The above case follows the 2013 case of Walker v Sita Information Networking Computing Ltd in which the EAT held that while obesity is not a disability in itself, many of the symptoms may result in the employee falling within the definition of disability.

To discuss this e-Brief in more detail, please contact a member of the Employment team.