Is Obesity a Disability?
Quite possibly, following the European Court of Justice’s decision in the case of FOA (acting on behalf of Kaltoft) v the Municipality of Billund.
The ECJ has ruled that, whilst there is no general principle of European law that renders discrimination on the grounds of obesity itself unlawful, a person’s obesity may in certain circumstances constitute a disability for the purposes of discrimination laws.
In this case, Mr Kaltoft was a child minder who had worked for a local Council in Denmark for 15 years. He had a body mass index of 54 classifying him as morbidly obese under the World Health Organisation classification. His employment was terminated by Municipality of Billund on the grounds of redundancy following a down turn in work.
Mr Kaltoft claimed that his obesity was mentioned during the dismissal process. Although his dismissal letter did not make any reference to his obesity, it neither stated why he, as opposed to his colleagues, had been selected for redundancy.
Mr Kaltoft therefore brought a claim in the Danish Court against his employer, alleging that he had been unlawfully discriminated against because of his obesity. In considering Mr Kaltoft’s claim, the Danish Court referred to the ECJ for a preliminary ruling on whether the Equal Treatment Framework Directive is to be interpreted as meaning that the obesity of a worker constitutes a disability within the meaning of the Directive.
The ECJ pointed out whilst the Directive whilst made no mention of obesity itself being a disability, it held that the effects of a particular individual's obesity may, in certain circumstances, mean that he/she is regarded as disabled for the purposes of European law. If so, it followed that he or she may therefore be entitled to protection against discrimination. The ECJ went on that say that the definition of a disability is such if it “entails a limitation resulting in particular from long term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
The ECJ left the application of this definition in respect of Mr Kaltoft for the Danish Court to determine, although it did highlight that the cause of disability is irrelevant.
Employers will therefore need to be mindful of the symptoms and effects of obesity, as any limitations posed to an obese worker by virtue of their obesity, regardless of the cause of their obesity, may amount to a disability if it impacts on his/her ability to participate fully and effectively in their professional life in comparison to their colleagues.
The ECJ’s decision has recently been applied in the UK Employment Tribunal in the case of Bickerstaff v Butcher, where an employee with a body mass index of 48.5 successfully claimed disability harassment for derogatory comments made by his colleagues regarding his weight.
The UK Employment Tribunals have therefore followed suit in applying the ECJ’s decision – it will be interesting to see how other European jurisdictions will apply the same.