According to reports, around 64% of the adult population in the UK is classed as being overweight or obese and this figure, it is anticipated, is set to rise.
In the workplace, obesity may sometimes hinder an employee’s health and ability to participate and carry out work effectively. But is obesity in itself a disability?
In June the Advocate General of the European Court of Justice (ECJ) issued an opinion in the case of Karsten Kaltoft v Municipality of Billund.
Kaltoft, who weighs around 25 stone, was employed as a Childminder by Billund City Council in Denmark. He was dismissed in 2010 after being deemed unable to perform his duties due to his size. His employer cited that fact that Kaltoft was reportedly unable to bend down to tie up children’s shoelaces as an example.
Kaltoft argued that he had lost his job because of his obesity and argued that this was discrimination because of his weight, which he said amounted to a disability. His employer disputed this allegation. The Danish courts referred the matter to the ECJ.
The Advocate General of the ECJ, Niilo Jaaskinen, found that obesity was not a protected characteristic per se under the Equal Treatment Framework Directive. The Equal Treatment Framework Directive sets out a general framework for combating discrimination in employment on a number of protected grounds, including disability. The Directive does not define “disability”. However, case law has established that “disability” means limitations which result from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person in professional life on an equal basis with other workers.
Notwithstanding this the Attorney General went on to say that in “cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers…plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability.”
The World Health Organisation ranks obesity into three classes by reference to body mass index (BMI). Persons with a BMI in excess of 40 are obese class III, sometimes referred to as severe, extreme or morbid obesity. The Advocate General’s opinion was that if an employee is classed as morbidly obese, they may be disabled if the obesity has an actual impact on their ability to participate and work effectively.
The Advocate General’s opinion is not binding but it would be unusual for the ECJ, whose judgments have force across the whole of the European Union, not to follow his opinion. It seems likely that the ECJ’s decision, which will be handed down in several months, will follow the Advocate General’s opinion.
Impact in the UK
At present obesity is not recognised as a disability or a protected characteristic under the Equality Act 2010. The Equality Act 2010 implements the Equal Treatment Framework Directive in Great Britain and provides that a person has a disability for discrimination purposes if they have a “physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.
Therefore, if the ECJ finds that obesity is in fact a disability, employers may need to make significant changes in the way that they deal with obese staff.
It is a matter of waiting to see what the ECJ’s decision is, so watch this space!
For more information, please contact Katie Maguire on 020 7880 4337.