Advocate General Jääskinen has today confirmed, in the case of Karsten Kaltoft v. Municipality of Billund, that morbid obesity may amount to a disability for the purposes of the Equal Treatment in Employment Directive.
The Directive sets the framework for equal treatment in employment across Europe and is implemented in the UK by way of the Equality Act 2010. This case (which concerns a Danish childminder who claims his employment was terminated due to his obesity) is therefore relevant to all UK employers.
The Advocate General accepted that there may be cases of extreme, severe or morbid obesity, where an individual has a BMI of over 40, which could create serious limitations on that individual’s ability to participate in the workplace, such as problems with mobility, endurance and mood, which could amount to a “disability” for the purposes of the Directive. However, the Advocate General rejected any suggestion that there is a general, stand-alone prohibition on discrimination on the grounds of obesity in EU law. The matter will now go before the European Court of Justice (ECJ) to consider, with judgment to be given at a later date.
In his written opinion, the Advocate General did not consider “mere” obesity (i.e. individuals with a BMI count of less than 40) was likely to amount to a disability. However, if the individual’s obesity has reached such a degree that it hinders their full and effective participation in the workplace, then he accepted that it could be a disability.
The Advocate General also added that the question of disability does not depend on whether it is “self-inflicted”. The cause of an individual’s obesity is irrelevant; it may be due to excessive eating, a psychological or metabolic problem, or as a side-effect of medication. The key question is whether their obesity (whatever its cause) hinders their full participation in the workplace – or, using the language of the Equality Act 2010, from carrying out normal day to day activities.
The Advocate General’s opinion is consistent with the approach currently adopted in the UK under the Equality Act, which protects individuals who suffer from physical and mental conditions that result from obesity, to the extent that they meet specified criteria in terms of their nature, effect and duration. If today’s opinion is followed by the ECJ, then this case is unlikely to change the approach taken by Employment Tribunals; but it does serve as a useful reminder of the considerations that an employer must give when dealing with individuals with severe weight problems, particularly if the Equality Act is engaged.