The European Court (CJEU) has ruled in the case of FOA v Kommunernes Landsforening C-354/13 that, whilst there is no general rule of EU law which prohibits, in itself, discrimination on the grounds of obesity, that condition may fall within the concept of disability where it hinders the full and effective participation in professional life on an equal basis with other workers.

Facts

Karsten Kaltoft worked as a childminder for the Municipality of Billund in Denmark until his dismissal in November 2010 after 15 years' service. Mr Kaltoft had a BMI of 54, which according to the World Health Organisation classification, made him severely obese.

Mr Kaltoft claimed his employment was terminated due to his obesity and this amounted to discrimination on the grounds of disability.  FOA, a workers' union acting on his behalf, brought a claim before the Danish court seeking a declaration of discrimination and compensation. The Danish court requested a preliminary ruling regarding EU law on discrimination and put these questions to the CJEU:

  • Is there a general prohibition in EU law on all forms of discrimination that include obesity?
  • Alternatively, can obesity be classified as a disability within the scope of the Equal Treatment Framework Directive (the Directive)?

CJEU decision

The CJEU has today held that EU law does not lay down a general principle of non-discrimination on grounds of obesity. However, if, under certain circumstances, the obesity of a worker leads to a limitation which results in particular from a physical, mental or psychological impairment that hinders a person’s full and effective participation in professional life on an equal basis with other workers, and the limitation is a long-term one, such obesity can fall within the concept of a disability for the purposes of the Directive.  The Court has emphasised that this must refer not only to the impossibility of exercising a professional activity but also a hindrance to the exercise of such an activity. Examples include reduced mobility or the onset of medical conditions stopping someone from carrying out work or causing discomfort when exercising professional activity. The CJEU stated that the origin of the disability is irrelevant.

Comment

The CJEU did not follow the Advocate General's opinion that an individual with a BMI of 40 or more was likely to be disabled and therefore the courts will have to decide each case on its merits.

This decision is likely to have a significant effect on UK employers, who may need to make changes to their working environment to comply with their duty to make reasonable adjustments for disabled employees. This may involve providing obese workers with special parking arrangements and larger desks and chairs and introducing new arrangements to reduce walking or travelling. Employers will need to be aware of any barriers in the workplace and be considerate towards employees with a disability they ought reasonably to know about. In addition they will need to take steps to avoid harassment of obese workers by colleagues, who may take the view that this is harmless banter, in order to avoid claims.

Employers must take steps to enable a person with a disability to have access to, participate in and advance in employment, unless such measures result in a disproportionate burden being placed on the employer.

The CJEU ruled that it is for the national court to determine whether Mr Kaltoft’s obesity falls within the definition of disability.