Food for thought at Christmas-time: ECJ rules obesity may be a disability - DAC Beachcroft

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Food for thought at Christmas-time: ECJ rules obesity may be a disability

Published On: 18 December 2014

As many of us tuck into mince pies and contemplate the Christmas fare to come, the European Court of Justice (ECJ) has today (18 December) delivered a sobering judgment on the subject of obesity. Although there is no express provision in European law prohibiting discrimination on the grounds of obesity, as such, the Court has recognised that obesity is capable of constituting a disability, under the European Framework Directive, which forms the basis of discrimination law in the European Union.

The judgment may have significant implications for employers.  The Court held that the "concept of disability" must be understood as referring not only to the impossibility of exercising a professional activity but also to a hindrance in exercising it.  It went on to also recognise that where long-term physical, mental or psychological impairments, in inter-action with various barriers, may hinder the full and effective participation of a person in professional life, on an equal basis with other workers, it is incumbent on employers not to discriminate against them. This is consistent with the opinion given earlier in the year by the Advocate General.

Although discrimination on grounds of obesity is not in itself unlawful, if a worker's obesity hinders his participation in this way - on account of reduced mobility or the onset of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity - he is entitled to protection from discrimination. The claimant in this case, Mr Kalkoft, had complained to the Danish court of discrimination when he was made redundant. He believed this was due to his severe or morbid obesity (he weighed 160kg, equating to a Body Mass Index of 54). Subsequently, it was accepted that he should be regarded as 'morbidly obese' within the World Health Organisation's classification of diseases and related health problems.

Rachel Dineley, Employment Partner and Head of the Equality and Discrimination Unit at international law firm DAC Beachcroft, commented: "The ECJ's Judgment makes clear that Member States must take such measures as are necessary, at national level, to ensure that when an individual considers that the principle of equal treatment has not been applied to them, and can establish facts from which it can be presumed that there has been direct or indirect discrimination, it is for the respondent to a claim to prove that there has been no breach of that principle. 

In other words, here in the UK, an employee whose obesity gives rise to reduced mobility and/or medical conditions preventing him from carrying out his work or causing him discomfort when carrying out his work in some way, on a long-term basis, his employer must ensure that he is not directly or indirectly discriminated against because of his disability. Otherwise, the employer faces the risk of a claim in the Employment Tribunal.

Employers need to remain vigilant, particularly at this time of year when so-called "office banter" at office Christmas parties can get out of hand, to ensure that the spirit of Christmas goodwill is not soured by jokes made in bad taste."

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