Ben Gorner, a Partner in our Birmingham office, comments: As we reported in Be Aware on 1 July and 18 July, the ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) allegedly because the employer thought that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.
Today the ECJ handed down its judgment and confirmed that, whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, obesity can be a disability covered by the protection against disability discrimination. This will be the case if the obesity entails a long term limitation which results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder full and effective participation of the person concerned in professional life on an equal basis with other workers. Such would be the case, in particular, if the obesity of the worker hindered participation in professional life due to reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.
It is for the national court to determine whether a particular claimant’s obesity falls within the definition of ‘disability’. The ECJ specifically did not adopt the threshold indicated by the Advocate General’s opinion of ‘severe’ obesity, which refers to morbid obesity, meaning a BMI of 40 or more (around 21 stone for an average height man). This must be the correct approach, since what is relevant is not the employee’s weight as such but the impact it has on their day-to-day activities, but it will raise familiar issues for employers determining whether particular employees are disabled or not.
The ECJ’s decision will have implications for both employers and service providers particularly in relation to the duty to make reasonable adjustments. The decision does not, in fact, substantially increase the ambit of discrimination law in the UK. The Equality Act 2010 has already been interpreted as protecting employees who suffer from physical and mental conditions which result from obesity (in the 2012 EAT case Walker v Sita Information Networking Computing Ltd), but as in the ECJ, obesity has been rejected as a disability in its own right by the UK courts. However, the clear articulation by the ECJ that obesity may constitute a disability is likely to lead to more claims, and the impact of the ECJ’s decision could prove substantial for UK employers. The UK has one of the highest percentages of obesity in Europe; 64% of adults are classified as being overweight or obese. Employers may now be prevented from treating some employees less favourably or dismissing some obese employees because of their weight. The most important impact, however, will almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. Employers may be expected to provide specialist equipment or furniture, parking or other travel assistance and adjustments to sickness absence policies. Employers will need to consider their responsibilities towards obese workers whose weight impacts on their ability to participate in the workplace.