A much anticipated Advocate General’s Opinion considering whether obesity can be a disability for the purposes of EU equality law has now been delivered.  The AG decided EU law does not include a general principle prohibiting employers from discriminating on grounds of obesity. However, severe obesity can be a disability if it hinders full and effective participation in professional life. This is the first EU case that deals with obesity in the sphere of discrimination in the workplace. UK commentators have been wondering whether the scope of discrimination may be extended to cover obesity - and particularly whether this could be a new and separate protected characteristic covering physiological conditions such as appearance or size.

This particular case involved Mr Kaltoft, a Danish childminder, who claimed that his employment had been terminated because of his obesity. The World Health Organisation ranks those with a Body Mass Index (“BMI”) in excess of 40 as being severely or morbidly obese. Mr Kaltoft had been morbidly obese throughout his employment, with his BMI reaching 54 at one stage.

The AG clearly stated that the European legal framework does not prohibit discrimination in a generalised way but on specific grounds, which includes disability.  Only obesity that is severe, extreme or morbid will create limitations such as problems in mobility, endurance or mood that amount to a disability. Mere obesity (for example a BMI of less than 40) would not be sufficient. Additionally, it is irrelevant whether the person was obese due to simple excessive energy intake, in relation to energy expended, or whether the obesity can be explained by reference to a psychological or metabolic problem, or as a side-effect of medication.

This is only an AG’s Opinion and the ECJ may disregard it. However the Opinion is likely to be a welcome relief for employers as it concluded that obesity is not a separate protected characteristic. It does however bring the link between obesity and disability into the spotlight and employers of very obese employees (with a BMI of over 40) should proceed with caution at least until the ECJ judgment clarifies the approach.

Please click here to read the AG’s Opinion in FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund, Case C-354/13