FOA, acting on behalf of Karsten Kaltoft v Billund Kommune (C-354/13)
Article 21 of the Charter of Fundamental Rights (EU Charter) prohibits "discrimination based on any ground such as... disability". The EU Equal Treatment Framework Directive lists a number of protected grounds, including disability. EU case law has held that disability means limitations which result from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person in professional life on an equal basis with other workers.
In this case, the ECJ had to consider whether workers are protected against discrimination on grounds of obesity, either in general and where it affects their ability to do their job.
Mr Kaltoft had a BMI (body mass index) of 54. The World Health Organisation considers those with a BMI over 40 to have "severe, extreme or morbid obesity". He worked as a childminder (looking after children in his home) for the Municipality of Billund in Denmark until he was dismissed due to redundancy in November 2010 after 15 years of service. He had tried to lose weight over the years and his employer had given him financial assistance to attend exercise sessions, but he had regained the weight he lost. Mr Kaltoft claimed that he had been dismissed because of his obesity and brought discrimination proceedings in a Danish District Court.
The District Court referred the following questions to the ECJ for clarification:
- Does the EU law which prohibits discrimination also include obesity?
- If it does not, can obesity be a disability within the scope of the Equal Treatment Framework Directive?
The Advocate General held that there was no general principle of EU law prohibiting discrimination on grounds of obesity in its own right but that severe obesity may amount to a disability under the Equal Treatment Framework Directive. Whilst simply being obese is not a disability, the severity of the condition may mean that a person with obesity may be disabled. The Advocate General said that it would run counter to the aim of the Equal Treatment Framework Directive to define its scope by the origin of the disability, so it was irrelevant whether the obesity was caused by a metabolic or psychological problem or otherwise.
The ECJ agreed with the Advocate General. Neither the EU Charter nor the Treaty on the Functioning of the European Union makes any specific reference to obesity. There is no general principle of non-discrimination on grounds of obesity with respect to employment or occupation.
The ECJ had previously held that the concept of disability must be understood as referring to "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. Disability means not just impossibility of carrying out a professional activity, but also a hindrance to doing so.
It would be counter to the aim of the directive to define its scope by reference to the origin of the disability, and it would be wrong to define someone as disabled based on the extent to which they had or had not contributed to the onset of that disability.
Obesity itself is not a disability as by its nature it does not necessarily mean a person will have a limitation upon their participation in professional life. However, if the worker does suffer such a long-term limitation because of their obesity, then obesity can be covered by the concept of disability under the Directive.
Both parties to the case agreed that Mr Kaltoft had been obese throughout his employment. However, it is for the Danish District Court to decide whether he had suffered a limitation.
What to take away?
The judgment is fairly clear – obesity is not a protected ground in its own right, and nor is obesity a disability unless the person in question suffers "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 Advocate-General's Opinion had suggested that only those with a BMI of over 40 were likely to be covered by the concept of disability, but the ECJ did not repeat this. The use of BMI alone to define obesity has been criticised. In any case, f the effect on a worker is key to whether a person is disabled, then if his or her weight is affecting participation in professional life then the precise weight should not be of relevance.
This decision in this case is very similar to the UK authority on the issue, in particular Walker v SITA Information Network Computing Limited UKEAT/0097/12. In that case, the EAT held that whilst obesity is not in itself an impairment, obesity might make it more likely that a worker has impairments which are disabilities.