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Severe Obesity May Now Be A Disability States Advocate General

The Advocate General (AG) of the European Court of Justice (ECJ) has issued a preliminary ruling considering whether obesity could fall within the definition of ‘Disability’.

The case which prompted this ruling involved Karsten Kaltoft, a Danish childminder, who was dismissed by his local city council after being unable to bend down to tie up a child’s shoelaces. Kaltoft had a Body Mass Index (‘BMI’) of 54 and never weighed less than 25 stone during his 15 years of employment. Kaltoft claimed that his employer dismissed him due to his weight and that this amounted to unfair discrimination. Kaltoft’s employer disputed his claim and stated that his dismissal was not related to his obesity.

The ECJ was asked to consider whether obesity could be considered a disability. An AG’s opinion is not binding but is usually followed by the court. If it is recognised by the court in this case the judgment will have force across the whole of the EU.

Under the Equality Act 2010 the basic definition of ‘disability’ is that an employee has to have a physical or mental impairment and that this has to have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. It is unlawful to discriminate against workers because of a physical or mental disability or to fail to make reasonable adjustments to accommodate a worker with a disability.

So far the courts here have held back from classifying obesity as a disability, albeit conditions such as diabetes that may result from obesity are certainly capable of being disabilities. In a UK ruling last year the Employment Appeal Tribunal took a further step in stating that obesity itself was not a disability but that an obese person may be more likely to come under the definition by having obesity related impairments such as depression.

In the Kaltoft case the AG has now confirmed that although obesity itself is not a protected characteristic, obesity of a certain severity may amount to a disability. The AG said that severe obesity would be where an individual has a BMI of over 40 and that this would hinder that individual’s full and effective participation in professional life to such an extent as to amount to a disability. The employee’s obesity would have to impact on their ability to participate in work otherwise they would not satisfy the necessary test. The AG has confirmed that it is irrelevant if the disability is self-inflicted.

The AG also stated that no link has to be made between the work concerned and the disability, giving the example of a wheelchair bound travel agent who is dismissed because the employer sees the disability as inconsistent with a new image for the agency that it wishes to develop. The worker would not be precluded from bringing a claim just because all her co-workers also perform the task required seated, so that the job in question is not affected by her condition.

The ECJ will now consider the Kaltoft case in greater detail and it will be for the national court to determine whether Kaltoft’s obesity falls within the new definition. If the case is successful this could have an a very significant impact in the way that employers deal with staff. Current statistics show that approximately a quarter of the UK population is obese and forecasts suggests that this proportion will increase.

Employers may be expected to consider reasonable adjustments such as alternative seating arrangements, reserved parking closer to the office and provision of healthy meal options in any staff canteen. However as obesity is so prevalent in society and the health problems that ensue from it inevitably impact on a business, employers would be well advised to start acting now to tackle the issue by encouraging their staff to be healthy at work and remain fit, active and productive in the workplace.

If you require more information about this please contact Richard Monkcom, Partner and Charles Avens, Solicitor, in Druces LLP’s Employment Team.

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