According to yesterday’s Advocate General’s opinion, severe obesity will probably amount to a disability under EU law.

The case concerns a Danish child-minder, Karsten Kaltoft, who claims he has been dismissed because of his obesity. During the 15 years of his employment his weight never dropped below 160kg. Given that he is 1.72m tall, that translates into a body mass index (BMI) of 54.  According to the World Health Organisation a BMI of 40 or over amounts to class III obesity – ie severe or morbid obesity.

The Advocate General rejected an argument that obesity is a disability per se. After analysing previous EU case law he concluded that it would only become a disability if it reached the point where it plainly hindered full participation in professional life on an equal footing with other employees. He thought that employees with severe or morbid obesity have probably reached that point, though in Mr Kaltoft’s case this question still needs to be determined by the Danish court ultimately deciding the case.

He added that the fact that the claimant had been able to do his job for 15 years was not the point. Under EU law disability is about barriers to full participation in professional life, not about such participation being impossible. Nor was the underlying reason for the disability relevant.

We will now need to wait and see whether the European Court follows this opinion. It will not be surprising if it does, given that that the conclusions reached are implicit in earlier EU case law. They are also broadly consistent with our domestic courts’ understanding of employers’ duties under the Equality Act towards disabled employees. See our posting here for the latest decision on this issue from the Employment Appeal Tribunal.

This case has attracted a great deal of attention mainly due to its potential to increase the scenarios in which a person may claim to be disabled. Whatever the outcome, it will not significantly change the law. This is because the definition of disability under both EU and domestic law is functional rather than diagnostic. As has become increasingly clear over the past few years, the emphasis is on what long-term physical or psychological barriers the employee faces when seeking to participate in the workforce, not on the precise medical diagnosis. Those with severe or morbid obesity may meet this threshold either on the basis of their obesity or any conditions arising from the side-effects.