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Hewett's Legal Corner - July 2014 #15



The Advocate General of the European Court of Justice (ECJ) has recently provided his opinion on obesity discrimination. Whilst he concluded that there is no general principle of EU law prohibiting discrimination on the grounds of obesity, sever or morbid obesity may fall within the definition of “disability” if it hinders a worker from full and effective participation in their professional life.                                                                               

This opinion is not binding at present but in most cases, the Advocate General’s opinion is followed.  Employers should therefore start thinking about what implications this opinion may have on them in the near future.

Case  - Kaltoft v The Municipality of Billund
The Advocate General’s opinion has been delivered as a result of a recent case in Denmark whereby a child-minder called Mr Kaltoft was dismissed in November 2010 after 15 years of continuous service.  

Mr Kaltoft was dismissed as a result of a decline in the number of children requiring care.  During the dismissal hearing, Mr Kaltoft’s obesity had been discussed and his employer. Mr Kaltoft argued that his employer failed to explain why he had been selected for dismissal and complained that he had been dismissed because he was deemed unable to perform his duties due to his size.  Mr Kaltoft had a BMI of 54 (and was therefore considered to be morbidly obese according to the WHO rankings). 

Mr Kaltoft pursued discrimination proceedings in a Danish Court alleging that he had been dismissed because of his obesity.  This case was then referred to the Advocate General to establish whether obesity amounts to a disability under the Equal Treatment Directive.  The Advocate General decided that severe or morbid obesity might fall within the definition of ‘disability’ if it hinders a worker from full and effective participation in their professional life on a legal basis with others workers.  

The ECJ will now consider this case in detail and it will be for the national court to determine whether Mr Kaltoft’s obesity amounts to a disability.

What is obesity?
Obesity is not the same as being overweight.  The World Health Organisation (WHO) ranks obesity by reference to Body Mass Index.  At present, those with any Body Mass Index in excess of 40 are classed as extremely or morbidly obese.  

Obesity rates in the UK are the highest in Europe with over 20% of the UK population being considered obese.

Implications for employers.
The Advocate General’s opinion could have significant implications for employers. 
As most employers are aware, the Equality Act 2010 provides that a person has a disability for discrimination purposes if they have a ‘physical or mental impairment and the impairment has a substantial long-term adverse effect on the individual’s ability to carry out normal day to day activities’.  

If obesity does qualify as a disability then employers will of course be obliged to make reasonable adjustments for their continued employment.  This may include:-

•    Providing bigger chairs and desks;  
•    Ensuring that car parking spaces are available near to the entrance of premises;
•    Varying duties so that they include less mobility.  

Further, employers would also have to ensure that they do not discriminate against any job applicants when conducting interviews to ensure that they are not discriminating against candidates on the basis of their shape or size.  

Anyone who wishes to seek advice on any of the issues herein or if you have any queries pertaining to the above, please contact Sally Morris buy email to or by telephone on 01905 73403201905 734032

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