Summary

An opinion on whether an obese worker is protected under discrimination law has been issued by Advocate General Jääskinen. It was found that while obese workers are not automatically covered, where a worker is "severely, extremely or morbidly obese", the worker may be considered to be disabled and therefore protected under discrimination law.

We discuss this in more detail below.

Background

The case of Kaltoft v Municipality of Billund (C354-13) involved Mr Kaltoft, who was a childminder for the Municipality of Billund and was dismissed purportedly for redundancy after 15 years with his employer. Mr Kaltoft had been obese throughout his employment, and at one time had a BMI of 54. It was alleged that there had been "discussions" about Mr Kaltoft's obesity during the dismissal process and Mr Kaltoft sought to bring a claim that he had been dismissed because of his obesity, which amounted to discrimination on the grounds of obesity.

The Danish District Court sought clarification on whether this was a valid claim from the European Court of Justice.

Questions

The two questions that were referred were:

  • 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

Standalone principle of obesity discrimination?

The Advocate General dismissed the idea that there was a standalone principle of EU law that applied to obese workers. The argument raised was that there was a general principle prohibiting discrimination in the labour market. It was clearly stated that discrimination was not prohibited in a generalised way, but rather on specified grounds, e.g., age, disability, etc.

Could obesity amount to a disability?

When looking at whether obesity could amount to a disability under the Equal Treatment Framework Directive (which the Equality Act 2010 implements in Great Britain), the Advocate General confirmed that an obese person may meet the definition of disability under the Directive. It would be a question of degree and would depend on the effects of the obesity, i.e., whether there were long-term physical or mental impairments which hindered the effective participation of the person in professional life on an equal basis with others (a test similar to the one in the Equality Act 2010).

The Advocate General referred to the World Health Organisation's classification of obesity as being ranked into three classes according to BMI, with Class III or morbid obesity being where an individual has a BMI of higher than 40. In his view, the Advocate General stated that only Class III obesity would likely amount to a disability.

He also stated that the notion of disability was considered to be "objective", and the fact that it was self-inflicted should not preclude the condition from being protected. The Advocate General likened this to precluding disabilities which arose from risk-taking in traffic or in sports. (Note, however, that conditions such as alcoholism are excluded from the Equality Act 2010, but a disability arising from an excluded condition, say liver disease from alcoholism, could be covered.)

Previous case law in GB

This finding is consistent with the recent EAT decision of Walker v Sita Information Networking Computing Limited [2013] UKEAT 0097_12_0802 which came out last year. It was found that a Tribunal must simply consider the definition of disability, starting with whether the individual has a physical or mental impairment. In that case, the Claimant, who was 21.5 stone, suffered from "functional overlay compounded by obesity" which had a number of symptoms (including asthma, diabetes, high blood pressure, and bowel and stomach problems). He was found to be disabled.

What does this mean for GB employers?

While this opinion was given at EU level, it is applicable to decisions made in GB courts. The ECJ needs to make a formal finding, but it commonly follows the Advocate General's opinion.

Therefore, obese workers may be considered to be disabled, depending on the extent of the obesity and the impact on the particular individual. A good rule of thumb is to consider that individuals with BMI of around 40 or higher, or who appear to be morbidly obese, could well be covered.

Practical points

As with many ill-health issues, the effect on each individual will be unique, and a separate assessment will be needed to determine whether an individual is disabled. However, employers would be wise to consider making reasonable adjustments where an employee is morbidly obese.

For example:

  • Providing particular equipment to work, e.g., a special desk or chair for an office worker
  • Considering whether there are duties that the employee may find particularly challenging because they require a long period of time standing or walking
  • Considering requests for reduced hours or alternative working where the employee suffers from particular fatigue or other physical symptoms which make it difficult to work core hours

Mr Kaltoft raised that as an obese person he may face barriers to the employment market on the basis of his physical appearance. While this was not directly considered by the Advocate General, it is worth being aware that an applicant who is not selected on the basis of obesity may have a discrimination claim. Office "banter" relating to an obese person's physical appearance may also lead to harassment claims. Managers should be made aware of these sensitivities in equal opportunities training.