Is obesity a disability and therefore a protected characteristic under EU discrimination law. Maybe, according to Advocate General Jääskinen.

The question is currently before the European Court  of Justice (ECJ) in the case of Kaltoft v Municipality of Billund. Mr Kaltoft, a child-minder in Denmark, alleged that he was dismissed due to his obesity and that this amounted to unlawful discrimination. At over 350 pounds (160kg), he was considered morbidly obese and unable to carry out certain duties.

The Danish court referred the question of whether a person’s obesity is covered under European discrimination law, and whether obesity amounts to a disability, to the ECJ.

The Advocate General’s opinion on the matter is that, whilst there is no specific protection against discrimination on the basis of obesity per se, it may fall within the definition of a disability if it is “severe” to   the extent that it hinders the person’s full participation in professional life. In the Advocate General’s view, those with a BMI of over 40 (class III obesity on the World Health Organisation’s scale), known as severe, extreme, or morbid obesity, are likely to fall into that category as that level of obesity is likely to cause mobility, endurance, and mood issues. Employers need not consider the reason for or cause of the obesity in determining whether or not it amounts to a disability. Rather, it is the impact the obesity has on that person’s life that is important.

Although the Advocate General’s opinion is not binding on the ECJ, it is more often than not followed.  Should that be the case, employers would need to consider whether any of their employees’ conditions amount to a disability and, consequently, whether any reasonable adjustments are required to be made to their workspace or duties. For example, is the office furniture suitable? Should a healthy option be available in the canteen menu? And should the employee’s request to work  from home one day a week be accepted? These, along with decisions regarding recruitment, dismissal, and other employee-related policies, will need to be considered in light of the additional protections offered.

Case reference: Kaltoft v Municipality of Billund (C-354/13)