An analysis of the recent European case of Kaltoft v Municipality of Billund and the subsequent opinion of the Advocate General concerning whether or not an obese worker is protected under discrimination law.

In recent years, obesity has been a rising concern for the UK, and according to the Global Burden of Disease study 67% of men and 57% of women are either overweight or obese in the UK. This growing issue has the potential to impact upon the way employers must treat their workers under discrimination legislation.

Kaltoft v Municipality of Billund

This issue is currently being considered by the European Court of Justice following the Danish case of Kaltoft v Municipality of Billund.

Mr Kaltoft was a child-minder, dismissed purportedly for redundancy. Throughout his employment, Mr Kalkoft had a BMI of over 40, making him severely obese according to the World Health Organisation, and at one point had a BMI of 54. During the redundancy process, it was alleged that there had been discussions in relation to his obesity throughout the dismissal process, and Mr Kalkoft subsequently brought a claim that he was discriminated against on grounds of his obesity.

The Danish Court referred two questions to the European Court of Justice:

  • Whether there was a self-standing ground of discrimination which applied to obese workers.
  • Whether obesity was always or is in some cases included in the scope of disability under the Equal Treatment Directive (implemented in the UK by the Equality Act 2010).

While not binding on the Court, the Attorney General’s opinion is that while not a self-standing ground of discrimination, obesity can be a disability, though he noted:

‘In my opinion, most probably WHO class III obesity, that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood, that amount to a ‘disability’ for the purposes of Directive 2000/78.’

What does this mean for the UK?

The Attorney General’s opinion is not a new interpretation of the law relating to disability discrimination in the UK, and the EAT reached a similar decision in the case of Walker v Sita Information Networking Computing Limited. The first instance tribunal held that the claimant was not disabled as a medical expert had been unable to identify a physical or organic cause for the claimant’s conditions, other than obesity.  The EAT overturned the decision, and found that a tribunal in such a case must simply consider the definition of disability, starting with whether the individual has either a medical, or a physical impairment. In that particular case, the 21.5 stone claimant suffered from ‘functional overlay compounded by obesity’ which produced a number of symptoms including asthma, diabetes and high blood pressure. In those particular circumstances, he was found to be disabled.

Conclusion

Obesity as of itself does not render a worker disabled, however, its symptoms may result in a worker meeting the statutory definition of disability, and thus be afforded protection under discrimination law. Employers should therefore consider whether or not there are any reasonable adjustments which could be made in respect of severely obese workers, and to ensure that such individuals are not treated less favourably due to their weight. It is also crucial to ensure that equality and diversity policies are brought up to date and ensure that co-workers are aware of their obligations to treat such individuals with respect and deal sensitively with any issues which may arise. 

Key:

Kaltoft v Municipality of Billund (C354-13)

Walker v Sita Information Networking Computing Limited [2013] UKEAT 0097 12 0802.

Global, regional, and national prevalence of overweight and obesity in children and adults during 1980—2013: a systematic analysis for the Global Burden of Disease Study 2013- The Lancet, Early Online Publication, 29 May 2014 doi:10.1016/S0140-6736(14)60460-8