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Hewett Legal Corner - January 2015 #27

This note considers whether obesity is a disability under EU law.

Following the recent case, FOA (Kaltof) v Billund, it was held by the European Court of Justice that obesity can be a disability under EU law. Therefore whilst there is no general principle of EU law prohibiting in itself discrimination on grounds of obesity, that condition may fall within the concept of a disability and thereby attract protection against discrimination subject to the usual criteria for establishing a disability being satisfied.

The Claimant was a clinically-obese child minder for a local council in Denmark. The Claimant was dismissed for redundancy however he alleged that obesity was a factor and pursued proceedings against the Respondent. The District Court referred 4 questions on obesity to the European Court of Justice:-

1. Whether it was unlawful to discriminate on the grounds of obesity;
2. Whether any such right was directly applicable;
3. What was the appropriate burden of proof;
4. Whether obesity could be deemed to be a disability under the EU Directive and if so, how to determine if an obese person is protected against disability discrimination.

The European Court of Justice held, in respect of the first question that obesity itself cannot be regarded as a ground for protection against discrimination and therefore the second and third questions above need not be answered.

The European Court of Justice held that “under given circumstances, ‘obesity’ entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one”, it could be a disability.

It was a matter for employment tribunals to determine whether the conditions required for obesity to be a disability are met. A worker with a long-term obesity might be regarded as disabled.

Impact on employers

The Equality Act 2010 protects against direct and indirect discrimination because of a disability and discrimination arising from a disability. Employers will be aware that they are also under a duty to make reasonable adjustments to an individual’s work in respect of any disability.

The impact of the case set out herein means that it may not be necessary for an obese employee to point to a connected medical condition before they can be categorised as disabled for the purposes of the legislation.

As such, employers should consider workplace obstacles and employees health. Employers may consider the following and should always consider whether an employee may have a disability and whether the employer should seek medical opinion in this regard. In particular employers should consider:-

  •   Is an employee showing signs of struggling at work? Have they mentioned that they are struggling?
  •   Has an employee been on long term sick leave and why? Or short term sick leave and why? Should reasonable adjustments be made to assist with an employee’s return to work?
  •   Has an employee requested adjustments or are you aware of any adjustments that should be made or at a minimum considered?
  •   Do any of your practices or procedures disadvantage those with a disability?

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