Judgment of the Court of Justice of the European Union (Fourth Chamber), 18 December 2014 – Case C-354/13

Discrimination based on obesity

The Court of Justice was requested to rule two preliminary rulings raised by a dispute between a Danish employee and his employer, regarding the lawfulness of his dismissal, allegedly based on obesity.

The employee worked for 15 (fifteen) years for Billund Kommune (employer), as a daycare assistant.

During his employment contract, the employee was considered obese under the definition of the World Health Organisation (WHO).

However, due to the reduced number of children in the nursery, the employer decided to terminate his employment contract, but did not state the reasons why this particular employee, and not any of the other employees, was chosen to be dismissed.

The first preliminary ruling was related to the possibility of the European Union law to foresee a general principle of non discrimination based on obesity, as such, regarding employment and occupation.

In this sense, the Court considered that none of the provisions of the Treaties and of the secondary legislation of the European Union in the area of employment and occupation provided a general principle of non-discrimination based on obesity.  Moreover, the Directive on equal treatment in employment (Directive 2000/78/EC) exhaustively lists the various forms of prohibited discrimination, which does not include obesity.

On the other hand, the second preliminary ruling was related to the possibility of obesity being considered a “disability“, within the meaning of the Directive, i.e., “…a limitation which results, in particular, from long-term physical, mental or psychological disabilities, which in interaction with various barriers may prevent the full and effective participation in the professional life, comparing to other employees”.

The Court considered that if, “in certain circumstances, the obesity of the employee results on a limitation, in particular, from physical, mental or psychological disabilities, which in interaction with various barriers may prevent the full and effective participation in the professional life, comparing to other employees and if such limitation is a long- term one, obesity can be considered a “disability” within the scope of the Directive 2000/78”.

Such would be the case, in particular, if the obesity of the employee prevented his full and  effective  participation  in  professional  life  due  to  the  reduced  mobility  and pathologies that prevent him from carrying out his work or causing discomfort when carrying out his professional activity.

In this sense, the Court considered that the national court (the court that submitted the preliminary rulings) was responsible to decide whether the employee’s obesity framed in the concept of “disability”, for the purposes of establishing whether his dismissal was lawful or not.

Judgment of the Constitutional Court No 366/2014, Case No 1176 13

Special proceeding to challenge the regularity and lawfulness of the dismissal vs common proceeding

The Constitutional Court was requested to rule on the constitutionality of Article 387(2) of the Labour Code, regarding the legal form to challenge an individual dismissal due to the extinction of job position.

The employee considered that the literal terms of the law (“the employee may oppose the dismissal”), should be interpreted as meaning “that the employee can only oppose the dismissal judicially as regulated in the adjective law”, without imposing an obligation, granting the employee the possibility to resort to any of the alternative procedural means.

On the other hand, the employer considered that there had been a procedural error, since the suitable procedure to challenge the individual dismissal due to the extinction of job position is the special proceeding to challenge the regularity and lawfulness of the dismissal (acção especial de impugnação judicial da regularidade e ilicitude do despedimento) rather than the common proceeding. This argument was rejected by the employee, since  such interpretation would go against the principles of equality and access to the law, foreseen in the Constitution.

The Court considered that the special proceeding to challenge the regularity and lawfulness of the dismissal, specially established for this type of dismissals, did not breach the principles aforementioned, in particular, the time limit to challenge the dismissal.

In the opinion of the Constitutional Court, the time limit to challenge the dismissal (60 days) was not disproportionate to the exercise of the right , and was justified in general terms by reasons of certainty and legal security, “and, in the specific case of challenging a dismissal, by the “expectations of the employer not to have a dismissal challenged in Court beyond a certain time limit, thus being duly able to manage the staff” (Judgment No 140/94).

In this sense, the Constitutional Court considered that the part of Article 387(2) of the Labour Code whereby an individual dismissal notified in writing to the employee can only be challenged by submitting application claim within 60 days, is not unconstitutional, and  formally or substantially, given the absence of unequivocal medical certification of that fact …”.

Therefore, the Supreme Court of Justice decided to dismiss the appeal and to uphold the judgment appealed against.