In Kaltoft v Municipality of Billund C-354/13, the Advocate General has given his opinion that obesity is not a protected characteristic  under the EU Equal Treatment Framework Directive (the Directive) but it can fall within the  definition of a disability if it affects participation in professional life. Where an employee has  a Body Mass Index (BMI) of 40 or more and is morbidly obese, he or she may be disabled.

Facts

Mr Kaltoft had worked for the Municipality of Billund in Denmark as a child minder, caring for  other people's children in his own home, for 15 years when his employment was terminated. The  grounds for dismissal were stated to be a decline in the number of children but his employer did  not explain why Mr Kaltoft had been selected out of several child minders it employed.

Mr Kaltoft was 1.72 metres tall (or 5 feet 7 inches) and weighed over 160 kilograms (or 25 stone),  giving him a BMI of 54, which is classified as class III obesity or severe, extreme or morbid  obesity under the World Health Organisation classification.

His obesity was discussed at the dismissal hearing but his employer denied that it formed part of the basis for its decision to  dismiss him.

Mr Kaltoft claimed that his dismissal was unlawful discrimination on the grounds of his weight and  he brought a claim in the Danish court for damages for disability discrimination. The Danish court  referred the case to the European Court of Justice (ECJ) and asked it to clarify two points: (1)  whether obesity falls within a general prohibition in EU law covering all forms of discrimination  in the labour market and (2) whether obesity can amount to a disability under the Directive. The  hearing took place on 12 June 2014 and the Advocate General gave his opinion on 17 July 2014.

Advocate General's opinion

In answer to the first question, the Advocate General concluded that there is no general principle  of EU law prohibiting discrimination in the labour market that would encapsulate discrimination on  grounds of obesity as a self-standing ground of unlawful discrimination.

With regard to the second question, he decided that obesity of a certain severity may amount to a  disability under the Directive. He pointed out that, whilst the concept of disability is not  defined in the Directive, the ECJ has stated that a disability in this context refers to  limitations that result from long-term physical, mental or psychological impairments which, in  interaction with various barriers, may hinder the full and effective participation of the person in  professional life on an equal basis with other workers. Although not every illness would fall  within the scope of this concept of disability, certain illnesses, if medically diagnosed and  resulting in long-term limitations, could be classified as a disability for the purposes of the  Directive. It was not necessary for the impairment to make the work impossible in order for the  person to be disabled. Therefore, if obesity had reached such a degree that it plainly hindered  participation in professional life, this could be a disability. Only extreme, severe or morbid  obesity (that is, a BMI of over 40) could suffice to create limitations that amounted to a disability for the purposes of the Directive. It would be for the national court  to decide if Mr Kaltoft's obesity fell within this definition.

According to the Advocate General, the origin of the disability was not relevant. In a  controversial statement, he said it was irrelevant whether the claimant had become obese through  over-eating or whether it could be explained by reference to a psychological or metabolic problem  or as a side effect of medication. The notion of disability was objective and did not depend on  whether it was self-inflicted, otherwise physical disabilities resulting from risk-taking in traffic or sports  would be excluded from disability. The Advocate General left open the question whether alcoholism  or drug addiction could also be covered by disability.

Comment

The ECJ usually follows the Advocate General's opinion but does not always do so. It will now go on  to consider its judgment, which should be available in the next few months. If it agrees with the  Advocate General, employers will have to take steps to avoid discrimination, harassment and  victimisation of morbidly obese employees. For example, they will need to ensure that they do not  treat a severely obese employee less favourably than a non-obese individual because of their  disability. They will not be able to discriminate against morbidly obese individuals in connection  with recruitment, terms of employment, promotion, training or dismissal and will have to ensure  that other employees do not subject them to harassment. They will also have to avoid discriminating  against employees who are associated with someone  who is morbidly obese.

Employers will also be under a duty to make reasonable adjustments for obese employees, such as  providing parking spaces at work, giving them larger desks and chairs and adjusting their duties so  that their work is less strenuous. Employers may also be expected to provide healthy eating options  in staff restaurants and vending machines and access to fitness programmes. How will employers know if any of their employees has a BMI of over 40? It will be difficult to ask the question and it will be up to a  tribunal to decide if an obese employee is disabled, having regard to medical evidence. Employers  will therefore have to treat all overweight staff carefully, as they may qualify as disabled.

The Advocate General began his written opinion by stating, apparently without irony, that "Obesity  is a  growing problem in modern society." A quarter of British adults is obese and this is expected  to rise to a third by 2020. If the ECJ agrees with the Advocate General, this case will have a  major impact on employers.

The Directive only applies to employment and occupation so, if the ECJ follows the  Advocate-General, its decision will not apply to wider categories of discrimination that are dealt  with in the Equality Act 2010 (such as the provision of goods and services and education), unless  the UK definition of disability is extended.

In a similar case last year, Walker v Sita Information Network Computing Ltd UKEAT/0097/12, the  Employment Appeal Tribunal held that an obese employee who suffered from a number of physical and  mental conditions was disabled. The EAT clarified that obesity itself is not an impairment for  disability discrimination purposes but may make it more likely that a claimant has impairments  within the meaning of the legislation.