Eversheds comments on advocate-general’s opinion on obesity as a disability

Audrey Williams, partner and head of discrimination at Eversheds, has commented on the recent opinion by the advocate-general that obesity could qualify as a disability.

Few legal cases have attracted wider public interest recently than that of the Danish childminder whose case has generated debate about whether obesity is a disability. While legal clarification from the Court of Justice of the European Union (CJEU) is still a few months away, the advocate-general has handed down his opinion, giving insight into the legal issues faced by the court and a potential conclusion available to it. He has concluded that the law does not regard obesity as a disability in its own right unless or until it reaches a level that patently hinders ability to carry out normal day-to-day activities.

Williams said: ‘The case of Mr Kaltoft, the Danish childminder who was dismissed for allegedly poor performance but claims he was discriminated against because of his obesity, appeared to polarise opinion when details reached the press last month. A common knee-jerk reaction was that a condition that often arises due to over-eating and lack of activity could not possibly constitute a “disability”. The advocate-general has confirmed that, on his analysis of the law, obesity is not a recognised disability. However, it is likely to be deemed such if it is at a “morbidly obese” level and plainly hinders participation in normal activities. He suggests a BMI of more than 40.’

Williams added that employers will no doubt be relieved by this conclusion and hope that, in principle, the European court will agree obesity is not generally to be regarded as a disability when it comes to decide Mr Kaltoft’s case. ‘However, what appears at face value as a blow for common sense actually belies a far more complex issue. A fundamental question that will certainly test the court, just as it has the advocate-general, is that despite the inevitable judgments made about obesity and its causes, fundamentally disability discrimination law is focused upon protection against disadvantage because of certain physical or mental symptoms.

‘The basis of disability discrimination law across European member states emanates from the European Equal Treatment Framework Directive, the principles of which will have been incorporated into UK legislation through the Equality Act 2010. The decision of the CJEU in this obesity case is accordingly potentially significant for UK employers. Key to protection from discrimination is that an employee is recognised as having a “disability” in the eyes of the law. The Equality Act sets out various identifying criteria in terms of the nature, effect and duration of a relevant “impairment”. With that in mind, one can see that the advocate-general is drawing a fine legal distinction and it becomes difficult to identify precisely just when conditions frequently associated with obesity, whether extreme breathlessness, joint pain or general mobility issues, become sufficiently disabling to the individual so as to satisfy those criteria. Surely that cannot easily be limited to a BMI number, so it is important that, while the advocate-general appears to suggest a likely threshold of a BMI of 40, this is illustrative only, not definitive.’

According to Williams, the European court is not bound to follow the thinking or conclusions of the advocate-general, but it seems highly likely it will follow a similar path. ‘In practice, the advocate-general has ploughed a difficult course through the European legal provisions, none of which expressly address obesity. Employers need to be aware, however, that they are still not able to put obese employees through performance management or to dismiss them with impunity, where their performance may be affected by obesity. Further enquiry will be needed as to the extent of the effects of obesity for that individual and there may be an underlying medical condition that has led to the obesity — certain prescription drugs, for example. There may also be associated conditions present that require further investigation. As a result, relying on an assumption that an obese employee is not disabled is not a safe approach.’

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