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18-12-2014

There have been a string of recent cases regarding the controversial issue of whether or not obesity amounts to a disability.

The latest and most important is the decision of the Court of Justice (EUCJ) in the Danish case of FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13.

In this case the Danish Court asked the EUCJ to specify

  1. whether or not EU law itself prohibits discrimination on the grounds of obesity and
  2. whether or not obesity could constitute a disability.

The “Employment Equality Directive” establishes a general framework for equal treatment in employment and is binding on all member states including the UK. It covers matters such as sex, religion, disability, but doesn’t specifically cover obesity.

The particular case concerned Mr Kaltoft who had worked for a nursery for 15 years and who was dismissed on the grounds of redundancy. Mr Kaltoft, who reportedly weighed 25 stone and satisfied the WHO definition of obesity, argued that his selection for redundancy was due to his weight.

The EUCJ stated that the general principle of non discrimination was a fundamental right integral to the general principles of EU law but that no treaty prohibited discrimination on the grounds of obesity as such. Nevertheless, the definition of ‘disability’ included a long term physical, mental or psychological impairment which may hinder an individual’s full and effective participation in professional life on an equal basis with others.

Therefore, if a person’s obesity is such so as to place limitations on their participation at work, it may amount to a disability. Furthermore, the fact that an employer may have made adjustments to allow participation at work did not mean that the person was not disabled.

The case was then referred back to the Danish Court to determine if Mr Kaltoft’s particular obesity fell within the definition of disability taking the above into account.

The decision was largely as expected given that the Advocate General had previously stated that severe or morbid obesity might fall within the definition of "disability" under the Equal Treatment Framework Directive if it stops an employee from full participation in their professional life on an equal basis with others.

The decision in Karsten Kaltof is binding on all member states and is seen as controversial in some quarters because some individuals regard obesity as a life choice rather than an illness. However the Advocate General has been keen to point out that it will not matter whether the obesity is caused by an underlying medical condition or simply the over-consumption of food. The crucial issue is whether or not the employee is, in fact, suffering from a long term impairment.

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.

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