In the UK, the European Equal Treatment in Employment Directive is implemented by the Equality Act 2010. This Act prohibits discrimination on various prescribed grounds, including disability.
On the 24th July 2014 the Advocate General stated that obesity may fall within the definition of “disability” for the purposes of discrimination law where an employee is so overweight that “it plainly hinders participation in professional life.”
The Advocate General’s opinion follows on from the case of Karsten Kaltoft, a child-minder who was dismissed by the Danish state on the grounds of a decline in the number of children requiring care. Mr Kaltoft alleged his employment had been terminated due to his weight and that this was discriminatory. The Danish Court considering the case referred it to the European Court of Justice(ECJ) to clarify whether obesity can be considered a disability and therefore qualify for protection under the Equal Treatment in Employment Directive.
The Advocate General points out that whilst disability is not defined in the Directive past cases have referred to any physical, mental or psychological impairment that would inhibit fruitful participation of the person in their working life “on an equal basis with other workers.” It is the Advocate General’s view that severe obesity would create sufficient limitations to fit this definition. He stated that in his opinion only those with a BMI over 40 could qualify as disabled.
The Advocate General’s view is not binding on the Court of Justice but it would be surprising for the Court not to follow his opinion, although it may refine it in its own judgement. Following this judgement, the case will be returned to the Danish Courts who must make a decision in accordance with the EJC ruling. UK Tribunals will also be bound by the same ruling if a similar issue is raised.
For the moment UK employers just need to be aware that the issue of obesity is rapidly gaining profile.
Finally it is significant to note that the Advocate General also issued a reminder that it is “irrelevant” that being overweight may be considered “self inflicted.” His point of view draws parallels with an injury suffered while engaging in a dangerous sport, which could be regarded as a disability despite its cause.
