Advocate General (AG) Jääskinen has concluded that there is no general principle of EU law prohibiting discrimination in the labour market, and that includes discrimination on grounds of obesity as a self-standing ground of unlawful discrimination. However, severe obesity may amount to a disability under Directive 2000/78. The AG delivered this opinion following a request for a preliminary ruling from the Danish court in Karsten Kaltoft v Municipality of Billund (Kaltoft). This is the first time that the Court of Justice of the European Union (CJEU) has been asked to determine which provisions of EU law, if any, apply to discrimination based on obesity.

Case facts

Kaltoft had been employed since 1996 as a childminder in the Municipality of Billund, Denmark. Following an official hearing process, he was dismissed on 22 November 2010. The parties disagreed as to whether Kaltoft’s obesity formed part of the basis for his dismissal.

Questions before the CJEU

The Danish court requested a preliminary ruling regarding EU law on discrimination through the following questions:

  • Is it contrary to EU law concerning fundamental rights, generally or particularly for a public sector employer to discriminate on grounds of obesity in the labour market?
  • If there is an EU prohibition of discrimination on grounds of obesity, is it directly applicable as between a Danish citizen and his employer?
  • Is the assessment to be conducted with a shared burden of proof, with the result that the actual implementation of the prohibition in cases where proof of such discrimination has been made out requires that the burden of proof be placed on the respondent/defendant employer?
  • Can obesity be deemed to be a disability covered by the protection provided for in Council Directive 2000/78/EC? If so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the prohibition of discrimination [on] grounds of disability as laid down in that directive?

The AG’s analysis

The AG grouped questions 1-3 together. Obesity is not expressly mentioned as a prohibited ground of discrimination in any of the measures of EU law relating to discrimination. The AG made it clear that the CJEU cannot extend EU law to include obesity as grounds for discrimination and went on to state that there must be dual identification between a specific and identified provision of Member State law which then falls into the substantive scope of an equally specific and identified provision of EU law. That was not the case in Kaltoft (nor is it the case in UK Law under the Equality Act 2010), and so the AG dismissed questions 1-3.

Is obesity a disability under Directive 2000/78?

Disability is not defined under Directive 2000/78. Following EU case law, disability has come to be understood as a limitation arising from long term, physical, mental or psychological impairments which may hinder the full and effective participation of the person in professional life as compared to other workers. The concept of disability is therefore understood to be the hindrance of participation in professional activity, not the impossibility of carrying out the work.  Kaltoft had worked for 15 years as a childminder and participated in the profession on an equal footing with other childminders. Kaltoft’s obesity did not impede his work as a childminder. The AG concluded that only severe obesity could amount to a disability in accordance with Article 1 of Directive 2000/78, and only when it fulfils all criteria set out in the CJEU’s case law. It is for the national court to decide if an obese individual has such a disability. In the UK this would be by satisfying the requirements of the Equality Act 2010.

Conclusion

The CJEU decision in Kaltoft is awaited.  Whilst the AG’s opinion indicates that obesity itself is not a disability, the CJEU is not bound to follow his opinion (although in the majority of cases they do so).  If the AG’s opinion is followed, future questions of discrimination on grounds of obesity will depend on the level of obesity of the individual and whether this satisfies the test of disability under the Equality Act 2010. It is important to note that conditions arising from obesity (diabetes for example) have always been covered by equality law and are not affected by the Kaltoft case.