Few legal cases have attracted wider public interest recently than that of the Danish childminder whose case has generated debate about whether obesity is a disability. Whilst legal clarification from the European Court (CJEU) is still a few months away, the Advocate-General (AG) handed down his Opinion on 17 July 2014, giving insight into the legal issues faced by the Court and a potential conclusion available to it.

With obesity being an increasing issue in the workplace, the decision of the European Court could prove significant for employers. An estimated 25% of the UK population is thought to be obese, a statistic which continues to grow year on year. However, whilst employers will be relieved to learn that, in the view of the AG at least, current law does not protect against discrimination on the grounds of obesity per se, what appears at face value as a blow for common sense, belies a more complex issue.

Background

In the current case, the Claimant, Karsten Kaltoft, was dismissed from his employment as a childminder with a Local Authority in Denmark. He had undertaken this role for some 15 years and throughout that period had been obese (according to BMI indicators)   –his weight never being less than 160 kg (or 25st). Despite attempts to lose weight, which included accepting his employer’s offer to fund gym membership and exercise classes, Mr Kaltoft was unsuccessful. His employment was eventually terminated on the grounds of performance when his employer alleged he was unable to fulfil many aspects of his role, due to his size. An example that has been cited, is that he was unable to tie a child’s shoe lace without assistance from a colleague.

Backed by the public sector trade union, FOA, Mr Kaltoft has challenged the fairness of his dismissal and has also alleged he has been discriminated against on the basis that obesity is a disability for the purposes of EU discrimination law. In contrast, his employer argues dismissal was justified in the circumstances but it in any event disputes that its actions were contrary to discrimination law at either domestic or EU level. The issues raised made their way to CJEU and were heard on 12 June 2014. Pending a court ruling, the AG has issued an Opinion on the case, the conclusions may or may not be followed by the court in due course.

UK Law

The basis of disability discrimination law across European Member States emanates from the European Equal Treatment Framework Directive which, fundamentally, seeks to protect those with long term physical or mental limitations hindering their full and effective participation in professional life. The principles of the Directive have been incorporated into UK legislation through the Equality Act 2010.  Accordingly, the decision of the CJEU in this obesity case is potentially significant for UK employers.  The Equality Act 2010 protects against both direct and indirect discrimination because of disability but also discrimination arising from disability. In addition, employers are under a duty to make reasonable adjustments to an individual’s work or working arrangements in order to counter the effects of disability.

Key to protection is that an employee is recognised as having a “disability” in the eyes of the law. The Equality Act sets out various identifying criteria in terms of the nature, effect and duration of a relevant “impairment”. A tribunal case just last year found an obese employee to be disabled when his obesity led to various disabling conditions. Interestingly, the conclusions of the EAT in that case are similar to those revealed by the AG in that it found obesity itself does not render an employee disabled but merely increases the probability that they will have a relevant impairment (Walker v Sita Information Networking Computing Limited (EAT/0009/12).

Mr Kaltoft contends that obesity can give rise to various obstacles to employment, directly hindering full and effective participation in professional life, either due to reduced mobility or because of associated symptoms but also due to prejudice. He argues, therefore, that these factors place obesity within the protection envisaged by the Directive.

AG Opinion

In the Opinion published on 17 July 2014, the AG has confirmed that, in his view, obesity is not a category of disability in its own right and, accordingly, does not attract automatic discrimination protection.

However, turning to the legal principles by which disability is identified and which are reflected in the Equality Act, the AG confirms there will be circumstances where the impact of obesity is sufficiently significant to lead to disability. He highlights, by way of example, cases of morbid obesity (recognised in the BMI calculator as a result of 40 or more), where obesity has reached a degree which “plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/ or psychological limitations that it entails”. In the view of the AG, only obesity that is severe, extreme or morbid will create limitations, such as problems in mobility, endurance and mood, that will amount to “disability” in the legal sense.

Comment

The fundamental question that will certainly test the Court, just as it has the AG is that, despite the inevitable judgements made about obesity and its causes, fundamentally, disability discrimination law is focused upon protection against disadvantage because of certain physical or mental symptoms. With that in mind, one can see that the AG is drawing a fine legal distinction and it becomes difficult to identify precisely just when conditions frequently associated with obesity, whether extreme breathlessness, joint pain or general mobility issues, become sufficiently disabling to the individual so as to satisfy those criteria. Surely that cannot easily be limited to a BMI number: so it is important that, whilst the Advocate General appears to suggest a likely threshold of a BMI of 40, this is illustrative only, not definitive.

The European Court is not bound to follow the thinking or conclusions of the AG but it seems highly likely it will follow a similar path. In practice, the AG has ploughed a difficult course through the European legal provisions, none of which expressly address obesity. Employers need to be aware, that they are  not  able to put obese employees through performance management or to dismiss them with impunity, where their performance may be affected by obesity. Further enquiry will be needed as to the extent of the effects of obesity for that individual and there may be an underlying medical condition which has led to the obesity –certain prescription drugs, for example. There may also be associated conditions present which require further investigation. As a result, relying on an assumption that an obese employee is not disabled, is not a safe approach.