The Advocate General in Kaltoft v Billund Kommune has advised that obesity may amount to a disability for discrimination purposes. 

However, his Opinion does not say that it will, or even will usually, do so. 

This case was brought by Karsten Kaltoft who claimed that his employment with the Municipality of Billund as a childminder was terminated due to his obesity (he weighed over 25 stone) and that this amounted to unlawful discrimination on disability grounds. The Danish courts referred the matter to the Court of Justice. 

The Advocate General has today given his Opinion in this matter. He made it clear that there is no general stand-alone prohibition on discrimination on grounds of obesity under European law. In other words it is not unlawful in itself to dismiss somebody just because he is materially overweight. The Advocate General went on to say, however, that “extreme, severe or morbid” obesity (and here we are talking where a person’s Body Mass Index is 40 or over) can amount to a disability for discrimination purposes if it creates problems in terms of mobility, endurance, mood, etc. Furthermore, the cause of the obesity is irrelevant. It does not matter whether someone became obese due to simple “excessive energy intake” (over-eating, as we used to call it) or through psychological or metabolic problems or the side-effects of medication. The focus should be on the effect and not the cause. That same focus probably means that the cut-off at a BMI of 40 would not stand up – if the same ill-effects appear in someone with a BMI of 39, it is impossible to see that a court or tribunal would disqualify him on that basis. 

Where does this decision leave UK employers? First of all, it is worth pointing out that the Advocate General’s Opinion is not binding on the Court of Justice, so it is possible that the Court could reach a different conclusion, although this seems unlikely.

Secondly, this decision does go slightly further than existing UK case law, in that the Advocate General was prepared to accept that obesity in itself can amount to a disability if it is of such a degree as to hinder full participation in professional life on an equal footing with other employees. Last year in Walker v Sita Information Networking Computer Ltd the EAT was not prepared to go this far, although it did concede that being obese is more likely to make someone disabled. 

From a practical perspective, if severe obesity can amount to a disability, it means that employers will have obligations under the Equality Act 2010, including the duty to make reasonable adjustments. The Advocate General himself said that whilst employers are not obliged to continue employing someone who is unable to carry out the essential functions of his job, they are required to make reasonable adjustments unless the burden would be disproportionate. This is likely to be of most concern to employers. 

With almost 25% of UK adults classed as clinically obese (a BMI of 30 or more) this decision is of obvious interest to employers. Having said that, the Advocate General did make it clear that it will only be those employees who are severely obese that will be treated as disabled for discrimination purposes and it is not the case that everyone who is clinically obese will now be able to bring successful disability discrimination claims if dismissed or treated unfavourably. Furthermore, if an employee is morbidly obese the chances are that he is suffering from other health conditions which are likely to amount to disabilities in their own right.