Judgment has finally been delivered in the so-called 'obesity case', which has caused a stir both in Denmark and across the world (for further details please see "Advocate general: obesity may constitute a disability").

Facts

The case involved a Danish childminder who had worked for a municipality for more than 15 years, providing childcare services in his own home. On November 22 2010 the childminder was dismissed, ostensibly due to a reduction in the number of children in the municipality. However, the municipality did not state why he had been chosen to be dismissed.

Throughout his employment the employee was considered to be obese, as defined by the World Health Organisation, and at the time of his dismissal he had a body mass index of 54. His obesity was mentioned in connection with a meeting regarding the dismissal; however, the parties disagreed as to why the issue was discussed. The employee then argued that the dismissal was due to his obesity and thus contrary to the Anti-discrimination Act.

In 2013, when the case was brought before the Kolding City Court, the court made a preliminary reference to the European Court of Justice (ECJ), which delivered its judgment on December 18 2014 in Case C-354/13.

ECJ decision

In accordance with the advocate-general's opinion, the ECJ did not find that EU law prescribes a general principle of prohibition against discrimination due to obesity alone in regard to employment and occupation. However, the ECJ did find that obesity may constitute a disability to the extent that it comprises long-term physical, mental or psychological impairments which – in interaction with various barriers – hinders the affected employee's participation in the labour market on an equal basis with other employees.

Consequently, the ECJ found that long-term obesity may constitute a disability if it hinders the employee from participating in the labour market on an equal basis with other employees as a consequence of his or her restricted mobility or illness, which:

  • prevents him or her from carrying out his or her work; or
  • means that the performance of the relevant occupational duties causes discomfort.

Kolding City Court decision

Based on the reduced number of children, the Kolding City Court held that from a purely operational point of view, there was a basis for reducing the number of childminders. The court held that the employee's weight throughout his employment fulfilled the criteria for obesity, but that obesity alone did not constitute a disability in the sense of the Anti-discrimination Act.

The court found that according to the medical information presented, the employee had not established that he suffered from physical, mental or psychological impairments which prevented him from fully and effectively performing his work as a childminder on an equal basis with other employees as a consequence of his obesity.

Further, in relation to the nature of the work, the court did not find that the discomfort as described by the employee (including restricted mobility in connection with the performance of his occupational duties) prevented him from carrying out his work as a childminder.

Accordingly, the court found that the employee had not proven that at the time of the dismissal, he had suffered from an illness which caused a disability under the Anti-discrimination Act.

Comment

The judgment shows that obesity alone does not constitute a disability under the Anti-discrimination Act, but that it may do so in certain special circumstances. Obesity may constitute a disability if it has been sufficiently documented that physical, mental or psychological impairments or discomfort caused by it prevent the affected employee from fully and effectively carrying out his or her work on an equal basis with others.

The judgment has been appealed.

For further information on this topic please contact Tina Reissmann at Plesner by telephone (+45 33 12 11 33) or email (tre@plesner.com). The Plesner website can be accessed at www.plesner.com.

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