On Thursday 17 July 2014, the Advocate General delivered his opinion on obesity discrimination.

The Advocate General delivered his opinion today on obesity discrimination. He concludes that it is unlawful to discriminate against someone on the grounds of obesity where it has reached such a degree that it hinders participation in professional life. In his opinion, only extreme, severe or morbid obesity, that is to say a BMI of over 40, could suffice. Employers will of course be hoping the Court of Justice of the European Union (CJEU) does not follow this opinion. Although it is not binding on the CJEU, in most cases the Advocate General’s opinion is followed.

This opinion relates to the Danish case, Karsten Kaltoft v Billund Kommune.  Mr Kaltof, a child-minder, weighed 25 stone and with a BMI of 54 at the time of his dismissal. He was dismissed because he could not carry out some of his duties due to his size, such as not being able to tie a child’s shoelaces without assistance from colleagues. His case was referred to the CJEU by the Danish courts, to establish whether obesity amounts to a disability under the Equal Treatment Directive which prohibits discrimination in the workplace. The Danish Attorney General decided that obesity is a disability.

In the UK under the Equality Act 2010, a person is considered to have a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Last year, in Walker v Sita Information Networking Computing Ltd, the Employment Appeal Tribunal ruled that obesity in itself is not a disability. However, the EAT acknowledged that an obese person may be more likely to suffer from a disability, as they may have chronic impairments that have a substantial impact on their ability to undertake everyday activities. 

So although employees are already covered under the Equality Act 2010 if they have substantial and long-term impairments which are caused or contributed to by their weight, obesity of itself had not yet been recognised as a protected characteristic under the Act in the way that race and gender currently are.

What does this mean for employers? 

With 4.5% of the UK population morbidly obese with BMI in excess of 40, if the CJEU agrees with the Advocate General’s opinion, the effect could be profound for employers. It would trigger employer’s obligations under the Equality Act 2010, so they would need to exercise caution to ensure that they do not treat a morbidly obese employee less favourably because of their weight. They would also be obliged to make reasonable adjustments to the workplace to accommodate such an employee if they are placed at a substantial disadvantage because of their weight. 

The Advocate General’s opinion also has social and cultural implications for the workforce. It is likely to mean staff will need training, because some employees at least are much more likely to sympathise with colleagues who they feel have a disability through no fault of their own, as opposed to others who they think are responsible for their condition. The Advocate General was clear that even if morbid obesity was self-inflicted this does not detract from the discrimination protection to be afforded. In the future, disability discrimination claims on the grounds of morbid obesity may well be brought against both employers and fellow employees of less favourable treatment on account of the individual’s weight.

A practical difficulty for employers is likely to be determining when an overweight employee tips into being morbidly obese and so having a disability. In most cases, it will be a difficult and sensitive issue to discuss with an employee, and just raising the issue of obesity with an employee could be perceived as offensive. 

Another challenge for employers will be having to adapt and reorganise workspaces to accommodate a morbidly obese employee who has mobility problems. Other related issues which could arise include whether a morbidly obese employee should have preferential access to a car parking space at work.

For those businesses that take pride in their image and the appearance of their staff, such as airlines, high-end retailers and luxury hotels or even health clubs, there will be additional issues to consider. It would be unlawful to reject a job applicant or to dismiss a morbidly employee because of their weight.