Later this year the Court of Justice of the EU (CJEU) is expected to give a ruling addressing, for the first time, the extent to which EU law protects workers against discrimination on grounds of obesity.  In the meantime, one of the CJEU’s Advocate-Generals has given an opinion on the matter which should offer some comfort to employers concerned that the floodgates could be opened to a new type of claim.   

Case facts

The matter has come before the CJEU following a request for a preliminary ruling from the Danish court in the case of Karsten Kaltoft v Municipality of Billund. Mr Kaltoft was employed as a childminder in the Municipality of Billund, Denmark, until  he was dismissed. He brought a claim against his former employer alleging that his obesity formed part of the basis for his dismissal and that this was unlawful.  To enable it to reach a decision, the Danish court has asked the CJEU certain questions including a) whether workplace discrimination on grounds of obesity is contrary to fundamental rights under EU law; and b) whether obesity can be deemed to be a disability covered by the Equal Treatment Directive.

The Advocate General’s analysis

To assist the CJEU, Advocate General (AG) Jääskinen analysed the issues and published his opinion in July.

In his view, there is no general principle of EU law prohibiting discrimination related to obesity in the labour market.

As for whether obesity is a disability under the Equal Treatment Framework Directive, the AG’s opinion is that obesity could amount to a disability  only when it fulfils the criteria set out in the CJEU’s case law. 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 AG suggested that, based on these criteria, only those with a body-mass index of 40 or above, who have the type of obesity categorised by the Word Health Organisation as class III or severe, extreme or morbid, are likely to have a disability by virtue of their obesity alone.

Next steps

The CJEU is not bound to follow the AG’s opinion when it gives its judgment later this year.  However, it seems likely to do so in this case. Future questions of discrimination on grounds of obesity will then depend on the level of obesity of the individual and whether in any particular case that person’s obesity satisfies the test of disability under the Equality Act 2010. In addition, conditions arising from obesity (diabetes for example), provided they have substantial and long term effect, have always been covered by equality law and are not affected by the Kaltoft case.