In the case of Kaltoft v Municipality of Billund (C-354/13) the Advocate General gave the legal opinion that obesity may amount to a disability for the purposes of the EU Equal Treatment Directive (No.2000/78) but only if the obesity is “severe”. Severe in this context was defined by the Advocate General as including obese persons with a Body Mass Index (“BMI”) of over 40 which would hinder the individual’s participation in professional life to such an extent that it amounts to a disability.
In this case Mr Kaltoft, who is 5 foot 7 inches in height and weighs 160kg (giving him a BMI of 54), brought a claim against the Municipality of Billund in Denmark after his employment as a childminder was terminated because of his disability. Mr Kaltoft subsequently brought a claim for disability discrimination against the Municipality of Billund, claiming that his obesity constituted a disability and that he had been discriminated against because of this. The Danish courts referred the claim to the European Courts of Justice and asked whether obesity is a form of “disability” and whether obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market.
The Advocate General rejected the submission that obesity was protected per se as a “protected characteristic” under EU law but accepted that “severe” obesity may constitute a disability under the Equal Treatment Directive. “Mere” obesity (a BMI of 40 or under) would therefore not be sufficient to fulfil the criteria.
This case clearly has implications for UK employment law in that certain categories of obesity (“severe” obesity) may now be protected as a disability under the Equality Act 2010. Employers should therefore be careful to make reasonable adjustments to the workplace to accommodate workers with “severe” obesity and it is important that employers do not intentionally or unintentionally discriminate against workers because of, or for a reason related to, their obesity.
There is likely to be significant litigation in obesity discrimination cases as to whether the person’s obesity is “severe” enough to constitute a disability and, further, whether it sufficiently hinders the individual’s participation in private life such as to amount to a disability.
Chris Hadrill, an employment solicitor at Redmans, commented on the news: “This opinion of the Advocate General is extremely welcome as it addresses a ‘grey area’ in the law relating to disability discrimination. It’s doubtful that there will be a ‘flood’ of claims relating to obesity discrimination from now but it will be interesting to see how the case law develops.”
A transcript of the case can be found here: http://www.bailii.org/eu/cases/EUECJ/2014/C35413_O.html