Severely obese staff may gain disability rights

Morbid obesity could be considered a disability under EU law, a top European legal official stated this week.

The Advocate General of the European Court of Justice (ECJ) stated that, while EU law does not generally ban discrimination on the ground of obesity, morbid obesity may come within the meaning of “disability” under EU law.

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

The case 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.

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

Elizabeth Slattery, head of employment at Hogan Lovells, said: “Although the opinion is not binding on the European Court, it is more often than not followed in the final hearing. And this 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.

“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’.”

She added that in last year’s case, 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 could now be in doubt,” she said.

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Glenn Hayes, an employment law partner at Irwin Mitchell, said: “If being obese means that an individual cannot perform the essential duties of their role and this condition is likely to be long term – which in the UK means at least 12 months – then the duty to make ‘reasonable adjustments’ probably kicks in, even if there is no underlying cause or illness. It is the effect of the obesity not its cause that is the key focus for the tribunals.

“This could mean that employers find themselves under a legal obligation to make adjustments, such as providing parking spaces close to the workplace entrance for obese employees, special desks, duties which involve reduced walking or travelling, or possibly even ensuring that healthy meal options are provided at their staff canteen.”