Disability discrimination: Obesity may be a disability
Published 6 January 2015
In this case the ECJ considered whether and when EU law protects obese workers from discrimination.
Mr Kaltof, a 25 stone Danish childminder, was employed by the Danish equivalent of a local council. His employment was terminated, after 15 years, when he was made redundant. As part of that process Mr Kaltoft's obesity was discussed. Although obesity was not mentioned in the dismissal letter, Mr Kaltoft claimed he was singled out for redundancy because he was obese. Following his dismissal, Mr Kaltoft brought a claim in the Danish courts arguing first that obesity was a protected characteristic in itself under the Equal Treatment Directive. Secondly he argued that obesity is a form of disability.
The European Court of Justice has agreed with the earlier Advocate General's opinion that obesity in itself is not a protected characteristic. However, obesity may fall within the definition of disability if an employee's obesity entails a limitation resulting from long-term physical, mental or psychological impairments, which hinders their full and effective participation in their professional life on an equal basis with other workers. Unlike the Advocate General, the ECJ did not suggest that only severe obesity with a BMI of 40+, might fall within the definition of disability. Each case will depend on its facts.
What this means for employers
The effect of this decision means that now UK employers must ensure that employees whose obesity gives rise to reduced mobility and/or medical conditions preventing them from, or causing them discomfort when, carrying out their work in some way, are not discriminated against because of their disability. Employees who are now protected are likely to ask for reasonable adjustments such as bigger chairs, more accessible offices or a parking space, which is closer to the office entrance. More challenging for employers will be eradicating any negative attitudes, for example during office banter. Updating and re-iterating diversity policies to take account of this development will be a key action point for employers in trying to bring about this culture change.