One Step Further to Obesity Being Considered a Disability

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.

This entry was posted in In The News, Legal and tagged , , by Elizabeth Baker. Bookmark the permalink.

About Elizabeth Baker

Elizabeth is our Business Development Manager. She has a degree in both English Literature and Law from Glasgow University. After graduating in 1983 she served her traineeship as a solicitor in Oban. When she was admitted as a solicitor her first job was at Mitchells Roberton in 1985 so she is a well known face. She spread her wings and joined other firms along the way and had a successful law practice under her own name for some years. She returned to Mitchells Roberton in 2011 and works primarily to enhance the marketing of our firm. With her excellent links with small business and the media in the greater Glasgow area, she is well placed in the role and generates a good deal of referrals and new business. Elizabeth is a people person and naturally connects with both staff and clients. Elizabeth has two grown up children and loves walking her dog, travelling and reading literature.

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