The recent ECJ decision in FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund, suggests that obesity could be regarded as a ‘disability’ for the purposes of EU law (and UK law).

The Equal Treatment Framework Directive 2000 sets out a framework for combating discrimination in employment across the EU on a number of protected grounds, including disability. Disability is not specifically defined in the Directive, but ECJ case law has established that it refers to 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 affected in professional life on an equal basis with other workers.

The Equality Act 2010 implements the Directive in the UK, including the disability aspects, and has a similar definition of disability to the EU definition. Under section 6, a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In this case, which originated from Denmark, Mr Kaltoft worked as a childminder until he was dismissed in November 2010 after 15 years of service. During his employment he had a BMI of 54, and was therefore severely obese according to the World Health Organisation rankings of obesity by level of body mass index (BMI). Mr Kaltoft claimed that he had been dismissed because of his obesity and brought discrimination proceedings in a Danish District Court, which referred four questions to the ECJ for clarification.

On the first question, the ECJ ruled that there is no general principle in EU law prohibiting discrimination on the grounds of obesity – so in effect it cannot be regarded as a protected ground in addition to other grounds such as age, disability etc. This in turn disposed of the second and third questions.

On the fourth question, the ECJ did rule that an obese person could be regarded as having a disability under the Equal Treatment Framework Directive. The ECJ highlighted that the concept of disability refers not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity. It was further highlighted that to define a disability by reference to its origin would undermine the Directive's aim of implementing equal treatment and that whether a person is disabled does not depend on the extent to which the person may have contributed to the onset of the disability.

This does not mean that obesity in itself automatically constitutes a disability, but that under certain circumstances the obesity of the person concerned may satisfy the requirements under the Directive – for example, on account of reduced mobility. It would be for the national courts to determine whether the person was disabled.

In some ways this decision is nothing new in the UK – the Employment Appeal Tribunal (EAT) reached a similar conclusion in February 2013 in the case of Walker v Sita Information Networking Computing Limited, in the context of whether obese workers are protected from disability discrimination under the Equality Act 2010. The EAT held that obesity does not of itself render a claimant disabled, but that the effects of obesity might make it more likely that a claimant has impairments within the meaning of the legislation. However, the effect of this latest case is to make similar rulings more likely and to emphasise the need for employers to take appropriate steps to accommodate obese employees.