Will the EU court agree that being grossly overweight qualifies for discrimination protection?
Obesity can constitute a disability within the scope of the equal treatment framework directive, according to the Advocate General (AG) of the European court. If this opinion on the case Kaltoft v Municipality of Billund is reflected in the final court decision (and such an opinion is not binding), severely obese employees will not need to show they have other impairments to be regarded as disabled under the UK’s Equality Act 2010.
Legal background
Individuals are disabled for the purposes of the Act if they are suffering from an impairment that has a long term and substantial impact on their ability to carry out normal day to day activities. In the case Walker v Sita Information Networking Computing, the EAT found that although obesity was not in itself an impairment, the fact that employees were obese might make it more likely that they were suffering from an impairment (such as diabetes) that could itself amount to a disability.
The Court of Justice of the European Union (CJEU) has taken a wider approach to whether an impairment amounts to a disability, focusing on whether the employee suffers from a long term impairment that interacts with other barriers to hinder that person’s "full and effective participation … in professional life" on an equal basis with other workers.
Facts
The Kaltoft caseconcerned a claimant employed as a child-minder by a local authority. During his employment his weight had never dropped below 160kg, which gave him a body mass index (BMI) of 54. According to the World Health Organisation (WHO), someone with a BMI of 40 or more is classified as severely or morbidly obese.
There was a reorganisation, following a decline in the number of children, and Kaltoft was dismissed. His employer did not explain why he had been selected for dismissal and he complained he had been discriminated against because of his obesity.
Opinion
The AG had to decide whether obesity could itself amount to a disability, meaning that discriminating against someone because of it could be disability discrimination. (The claimant argued that there was a free-standing right not to be discriminated against because of obesity under EU law, but this claim failed.)
According to the opinion, where obesity has reached such a degree that it hinders full participation in professional life, it can be considered to be a disability. The obesity would have to be severe enough to have an impact on factors such as mobility, endurance or mood. Someone falling within one of the other WHO categories of obesity (such as those with a BMI of between 30 and 40) would not be regarded as disabled just because of their obesity.
The AG also commented that the reasons for an employee's obesity are irrelevant to the question of whether that person is disabled or not, as this is an objective assessment and does not depend on whether the impairment could be said to be "self-inflicted".
Comment
In contrast to the EAT decision in Walker, there is clearly now a prospect of morbidly obese employees being able to show they are suffering from an impairment because of their obesity alone. They will not need to point to connected impairments to be able to bring a claim – the fact that their obesity has an impact on their participation in professional life will be sufficient for them to be regarded as disabled. Employees who are obese, but not morbidly obese, could still be regarded as disabled if they have other impairments, as was the case in Walker.
An AG opinion is only advisory. If it is reflected in the CJEU’s eventual decision, it is likely to cause real difficulties for employers trying to establish whether or not an employee is disabled for the purposes of the Equality Act and whether the duty to make reasonable adjustments has been triggered. Having a discussion about an employee's weight and whether adjustments are required, however sensitively, is something managers may find challenging.
Jo Broadbent is a senior professional support lawyer at Hogan Lovells
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