August 28, 2014

Obesity considered a disability in EU Law

Morbid obesity could be considered a disability under EU law, according to the European Court of Justice.

The Advocate General (AG), of the ECJ, has stated that, while EU law does not generally prohibit discrimination on the ground of obesity, morbid obesity may come within the meaning of ‘disability’ under EU law.

The AG’s opinion in the case of Karsten Kaltoft v Billund is not binding. However, the ECJ is due to rule on the case and if the full court agrees the UK could be required to make reasonable adjustments for morbidly disabled workers under the Equality Act 2010.

The case referred to above concerned the dismissal of a Danish childminder with a body mass index (BMI) of 54, who claimed unlawful discrimination because of his weight.

The Danish court asked the ECJ to clarify whether or not obesity is a disability under the EU Equal Treatment Framework Directive and, if so, how it could be determined.

Although the opinion is not binding on the European Court, it is more often than not followed in the final hearing. The opinion is in line with the European Court’s broad view of the meaning of disability – concentrating on the effect of the disability on the employee’s ability to work at full capacity.

The AG’s opinion was that only extreme, severe or morbid obesity (ie a BMI of more than 40) amounts to a “disability”.

Are they responsibie?

However, the cause of the obesity is irrelevant, so discrimination protection would not depend on whether or not an individual is responsible for their obesity.

By contrast, UK law has a specific definition of disability which looks at the effect of a physical or mental impairment on ‘normal day-to-day activities’.

In a 2012 case of Walker v SITA Information Networking Computing, the Employment Appeal Tribunal held that an obese claimant, who suffered from a number of physical and mental conditions, was disabled but made it clear that obesity is not in itself an impairment for disability discrimination purposes. Depending on the outcome of the Kaltoft case, that position may be in doubt.

The opinion though must be taken in context.  If the individual has a BMI of 40 or more to be classified as morbidly obese, they might be disabled if the obesity has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.

For example, there may be consequential effects such as breathlessness or mobility or there may be prescribed medical conditions affecting day to day activities (angina and other heart conditions) caused by the obesity.   In which case, there would be a statutory duty on the employer to make adjustments.

Once the ECJ has given their Judgment a further update will be produced.

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