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Employment Blog - Is obesity on its own, capable of being a disability?

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Mr Kaltoft, was employed by the Municipality of Billund as a childminder. Mr Kaltoft was obese and the parties agreed that he had been obese for the entirety of his employment (some 15 years). Having been dismissed from his employment, Mr Kaltoft brought a claim in his home country (Denmark) framed on two principal arguments:

1 That obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market, and that this rule had been breached by Municipality of Billund through Mr Kaltoft’s dismissal; and

2 that obesity is a form of “disability” so that discrimination on the grounds of obesity is prohibited.

The Advocate General found against Mr Kaltoft in respect of point 1. He then went on to consider point 2.

The opinion considered whether obesity, without more, fell within the definition of disability. The outcome of his consideration on the point was that, in certain circumstances, it could.

If an individual has a body mass index of 40 or more and as such classified as “morbidly obese” they may be disabled if obesity has a real impact on their ability to participate in work. Of course, if the obesity does not have a real impact on their ability to participate in work it will not amount to a disability.

So what does this mean for an employer?

If an employee is disabled by reason of obesity then the duty to make reasonable adjustments will arise in the usual way. Reasonable adjustments could include larger seats, parking near to their place of work or roles that require less mobility.

That said it is important to keep the point in perspective. Obesity is not a protected characteristic in itself and accordingly an employee cannot claim they have been discriminated against simply because they are obese. They would need to be disabled by reason of their obesity, and be discriminated against because of that disability, to have grounds to bring a claim.

Further, the employee does need a body mass index of more than 40 before obesity in itself can amount to a disability in itself according to the Attorney General’s opinion. Accordingly, there are likely to be fewer people who will fulfil the criteria than it may first appear.

Whilst the point is certainly one to bear in mind, we do not consider that it is likely to have significant or far reaching consequences for the majority of employers.

The ECJ still have to rule on the point. They usually follow the opinion of the Advocate General but not always. We expect judgment in around 4 – 6 months.

For further information, contact Francesca Wild or click to view our employment services