The Court of Justice of the European Union (ECJ) has held that severe cases of obesity can amount to a disability.

The case involved the dismissal of a childminder, Mr Kaltoft, who weighed over 160kg (25 stones) and had a Body Mass Index of 54. Mr Kaltoft brought a claim in the Danish courts alleging that he was dismissed due to his obesity and that this amounted to discrimination on the grounds of disability.

The Danish court referred several questions to the ECJ, including:

  • whether there is a general principle under EU law prohibiting employers from discriminating on the grounds of obesity
  • whether obesity can amount to a disability and fall within the scope of the Equal Treatment Framework Directive (the Directive).

The ECJ concluded that there is no general principle under EU law which prohibits an employer from discriminating on the grounds of obesity in its own right.

However, the ECJ concluded that obesity may amount to a disability covered by the Directive if it "entails a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers".

The ECJ pointed in particular to "reduced mobility" or "medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity" as examples of limitation arising from obesity which may amount to a disability. It will now be for the Danish court to determine whether Mr Kaltoft’s obesity met the conditions necessary for it to amount to a disability.

In the UK, the EAT has previously reached a similar conclusion in the case ofWalker v Sita Information Networking Computing Limited. In that case it held that obesity does not of itself render a claimant disabled but the effects of obesity might make it more likely that a claimant has physical impairments, such as diabetes or mobility problems, that brings him or her within the protection from disability discrimination under the Equality Act 2010.

The main implication for employers is that it may be necessary to consider whether any reasonable adjustments should be made in respect of an obese employee, who is put at a substantial disadvantage by a provision, criterion or practice applied by the employer. However, it will be necessary to consider in each case whether or not an individual employee is disabled and, if so, the extent to which any potential adjustments would be reasonable. It should also be noted that the obligation is to make reasonable adjustments, not adjustments at any cost.