The European Court of Justice (ECJ) has now confirmed that there is no general principle of EU law which prohibits discrimination on grounds of obesity. Therefore obesity can be considered a disability under EU law in the case of Kaltoft v Municipality of Bilund. For our analysis of the Advocate General’s opinion click here.
Mr Kaltoft was a clinically obese childminder in Denmark who was dismissed due to redundancy. He believed that the reason he was dismissed was a result of his obesity, not redundancy, and issued proceedings. The Danish Court referred four questions to the ECJ. The first three of these related to the question of whether or not obesity in itself can be considered a ground of discrimination. On this point the ECJ found that there is no general principle of EU law which prohibits discrimination on grounds of obesity.
The fourth question was whether obesity can amount to a disability under the Equal Treatment Framework Directive (the Directive). The ECJ found that it will if it entails a limitation resulting, in particular, from long-term physical, mental or psychological impairments, which, in interaction with various barriers, hinder a worker’s full and effective participation in their professional life on an equal basis with other workers. In other words, whilst obesity itself is not a protected characteristic, the effects of obesity may result in a person being disabled.
The Equality Act 2010 implements the Directive in Great Britain and therefore it is for the UK Employment Tribunals to determine whether obesity amounts to a disability. The EAT has already had to consider this question and came to a similar conclusion to that of the ECJ. Namely in Walker v Sita Information Networking Computing Limited the EAT held that obesity does not itself render a Claimant disabled. However, the effect of obesity may mean the impairments the Claimant suffers are within the Equality Act 2010 to render them disabled i.e. mobility problems or diabetes.
For further information please contact a member of the Employment Team.
