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Obesity as a disability – ECJ gives its decision in the ‘Kaltoft’ case

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16/01/2015

We reported in our June newsletter on the European case in which a Danish childminder (Mr Kaltoft) brought a claim against his local authority arguing that his obesity amounted to a disability under the Equal Treatment Directive. Mr Kaltoft was sacked because he could not perform his duties due to his size (25 stone). In particular, he was unable to bend down to tie up children’s shoelaces. The Danish court referred his case to the Court of Justice of the European Union (ECJ) to decide whether it is unlawful to discriminate on the grounds of obesity under European equal treatment laws.

The ECJ held that EU law does not, of itself, prohibit discrimination on grounds of obesity. However, obesity may fall within the definition of the Equal Treatment Framework Directive if it entails a limitation resulting from long-term physical, mental or psychological impairments which hinder a worker’s full and effective participation in their professional life on an equal basis with other workers. This is in line with the current position in the UK following the Employment Appeal Tribunal’s (EAT) decision in a case called Walker v Sita Information Networking Computing Limited that obesity is not an impairment in itself but the effects of obesity may result in an individual being disabled within the definition of the Equality Act 2010. Examples of potential disabilities arising from obesity might include chronic and long term back pain, diabetes or clinical depression.

So how does this affect employers in practice? The take-home message is that employers should bear in mind when dealing with heavily overweight employees that they may (but will not necessarily) fall within the definition of disability under the Equality Act 2010. Employers have a legal obligation to consider reasonable adjustments for any disabled employee which, in the case of obesity, might include the provision of larger chairs and desks or providing car parking spaces nearer to the work premises.

On a separate point, some media commentary on this case has questioned how a self-inflicted illness can qualify for protection as a disability. The Advocate General addressed this point stating, “It is irrelevant whether the obesity is due to excessive food intake or to a metabolic or psychological problem. The notion of disability is objective and does not depend on whether it is self-inflicted”. This is the correct legal interpretation and a parallel can be drawn between, for example, lung cancer brought on by heavy smoking. Even though the cancer might have been caused by lifestyle choices it is still treated as a disability under the Equality Act 2010.

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