Confusion over obesity disability ruling

Accommodating disadvantages left up to employers, says John Lee

Karsten Kaltoft was employed by a Danish council as a childminder. He was dismissed by his employer after 15 years of service. Picture: Getty

The Court of Justice of the European Union (CJEU) issued a groundbreaking judgment last week, dealing with the extent of discrimination protections to obese people.

The case was referred from the Danish courts involving Karsten Kaltoft, who weighed over 25 stone and was employed by a Danish council as a childminder. He was dismissed by his employer after 15 years of service.

Whilst the council claimed the reason for the dismissal was a decline in the number of children requiring its services, Mr Kaltoft claimed that the real reason for his dismissal was that he was unable to perform his duties as a result of his size, in particular in that he required the assistance of colleagues to tie childrens’ shoe laces.

He maintained that during a meeting to discuss his dismissal, and the reasons why he was the only employee nominated for this, ostensibly on the basis of the reduction of children requiring care, his obesity was mentioned. He contested the proposals of the council and insisted he was alone at being subject to them, due to his obesity. He was dismissed by letter thereafter by his employers who failed to address his insistence that his obesity was a factor.

The CJEU ruled that obesity can amount to a “disability” provided this “hinders the full and effective participation of employees in professional life”, on an equal basis with other workers. The court emphasised that there is no general principle in EU law that prohibits discrimination based on obesity in its own right and that any circumstances would also require to meet the applicable legal tests in amounting to a “limitation which results in particular from long-term physical, mental and/or psychological impairments…”. It offered examples such as reduced mobility or the onset of medical conditions preventing work being carried out or causing discomfort when carrying out duties.

The court has also made it clear that the origin of an obesity amounting to a disability is not relevant, for example where caused by gluttony adopting the view that “it would run counter to the aim of the directive if its application was dependant on the origin of the disability”. Self-imposed and avoidable conditions are therefore included in the scope of available protections. As the court put it: “The concept of ‘disability’…does not depend on the extent to which the person may or may not have contributed to the onset of his disability”.

The decision is binding on the EU’s member states, including the UK and now means employers here need to give serious consideration to their treatment of obese employees and, in particular, their duty to make reasonable adjustments in order to accommodate their disadvantages. This is likely to have particular relevance in labour intensive roles, requiring full mobility.

Until now, the position in UK law was that medical problems arising out of obesity could fall under the definition of a disability but obesity itself has not been accepted as a disability in its own right. Employers were therefore free from associated duties including any duty to make reasonable adjustments.

Whilst obese employees will now arguably be protected from direct and disability-related discrimination, it is difficult to be exhaustive in terms of the sorts of “reasonable adjustments” they might expect their employers to make. Examples could include from provision of larger seats and seating areas to adapted vehicles for those employed to drive and possibly varied shift patterns.

In addition to respecting fundamental legal obligations, there may also be future employment relations headaches for employers in the future, together with associated additional claims, as some employees may consider their obese colleagues enjoy preferential treatment.

The judgment does not define what specific level of BMI would be required in order to classify an obese person as “disabled” ruling that decisions would require to be made on a case by case basis by employers, having regard to the tests alluded to by the court.

This leaves a degree of confusion for employers and employees despite the judgment and has led to criticism from some commentators for this reason, whilst others take the view that extension of discrimination protections to obese workers is long overdue.

• John Lee is an associate and solicitor advocate specialising in employment law with DWF www.dwf.co.uk