The European Court of Justice has this morning published its decision in the Danish obesity reference. As widely expected it has confirmed that obesity is not of itself a disability, though obese people may well meet the legal definition, depending on their mental, physical or psychological health.
The ECJ has adopted the definition of disability for the purposes of the EU Framework Directive which was set out in the advocate general's opinion last year. As the ECJ puts it, disability for these purposes is:
- A “limitation”;
- Resulting from a long-term physical, mental or psychological impairment;
- Which in interaction with “various barriers” may hinder “full and effective participation” in professional life on an equal basis with other workers.
Perhaps equally important, it has added two important points about what the definition does not entail:
- Its scope is not defined by the origin of the disability;
- It does not depend on the extent to which the person may or may not have contributed to the onset of his or her disability.
No opinion was expressed about whether the claimant in this case – Karsten Kaltoft – does in fact fall within the definition, as this is a matter for the Danish court to determine. However the fact that he was able to work for many years despite weighing 25 stone without his employers needing to make any adjustments will not necessarily rule out a decision that he was a disabled worker.
The ECJ did not speculate about the degree of obesity which was likely to be required to satisfy the definition. In this respect its final judgment differs from the advocate general’s opinion, which stated that most probably only workers with severe or morbid obesity would qualify.
In relation to the narrow issue of whether obesity amounts to a disability, the approach taken by the ECJ does not differ that much from the latest decision of the Employment Appeal Tribunal to consider a disability claim from a severely obese worker. However, it serves as a reminder that the EU definition of disability places much greater emphasis on its social consequences than the more medicalised definition in the Equality Act. In some cases this could lead to a divergence in approach.