26 March, 2015
The European Court of Justice considered the question of whether obesity can be considered to be a disability in the case of FOA (Kaltoft) v Billund. The Court determined that it is possible for obesity to be considered to be a disability, however, it also suggested that discrimination on the grounds of obesity is not itself unlawful.
In the above case, Mr Kaltoft was employed as a child minder for the local city council. Mr Kaltoft has a body mass index rating of 54, meaning he has Class III obesity, or "severe, extreme or morbid obesity". His size restricted his ability to carry out certain facets of his child minding role. He was dismissed by reason of redundancy, however he alleged that obesity was a factor in his dismissal and commenced a claim for discrimination.
The ECJ held that obesity itself cannot be regarded as a ground for protection against discrimination. The Court also considered whether obesity could be deemed to be a disability under EU Directive 2000/78/EC (The General Framework for Equal Treatment in Employment and Occupation) and if it could, provide guidance on how an obese person may be protected against disability discrimination.
It was considered that in certain circumstances, obesity characterises a limitation made up of particular physical, mental or psychological impairments, which may hinder the person's ability to participate effectively in their professional life when compared to other workers over a long-term period of time. The ECJ found that the origin of the obesity, or any contribution towards it was irrelevant.
Ultimately, the ECJ found that national courts would determine whether a particular case of obesity would meet the requirements to constitute a disability.
Whilst there is uncertainty at this stage as to how big an effect this decision will have on a national level, employers should be wary of the potential implication of the ECJ's decision. Employers should be careful to consider potential reasonable adjustments to be made should an employee be considered to be disabled on account of obesity. For example, an employee may require additional office equipment, or a different system of working to assist with their ability to carry out their role. Employers should also be aware of the potential difficulties raised during the recruitment process.
For further information please contact Jennifer Baines on 01772 220188 or email Jennifer Baines