Will obesity be redefined as a disability?

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The European Court of Justice (ECJ) has recently heard a discrimination claim brought by a Danish child minder, Karsten Kaltoft, against his local authority. 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. He argued that obesity should be protected as a disability under anti-discrimination laws and the Danish court referred his case to the ECJ which now has to decide whether it is unlawful to discriminate on the grounds of obesity under European equal treatment laws.

In the UK, the Equality Act 2010 protects those suffering from physical or mental impairments which result from or are connected with a person’s obesity (e.g. medical conditions such as chronic back pain, diabetes or long term clinical depression) but it does not protect someone from discrimination on the grounds of obesity per se nor is obesity recognised as a disability in its own right. Moreover, under the Equality Act, an impairment will only amount to a disability if it is ‘long-term’ (i.e. expected to last for more than 12 months) and there is an argument that, with appropriate dietary and exercise measures, obesity in many cases could be resolved within 12 months.

Our view is that Mr Kaltoft will struggle to persuade the ECJ of his case. If, however, the ECJ does find in his favour it will be a significant extension of European equality law. It could impact on employers by requiring them to make reasonable adjustments to prevent obese employees from being disadvantaged at work by, for example, providing special car parking spaces, seating or desk space.

The USA has already seen a number of successful claims based on obesity discrimination at work and employers in the UK (where 64% of adults are now classed as overweight) will be watching this case with interest.