If ECJ considers obesity a disability, effect for employers could be ‘profound’, says Eversheds

Audrey Williams, partner and head of discrimination at Eversheds, has commented on the European court considering for the first time where obesity sits in legal terms and whether it should be considered a disability in the case of Karsten Kaltoft v Billund Kommune

The outcome could prove significant for employers, triggering potential obligations to make reasonable adjustments at work or restricting opportunity to reject job candidates due to their weight.

This question will be considered by the European Court of Justice (ECJ), in proceedings brought by a Danish childminder, Mr Kaltoft, who alleges he was dismissed by his local authority due to his obesity. The authority claimed that he was unable to perform his duties, for example needing the help of a colleague to tie a child’s shoe laces.

What is in issue is whether Mr Kaltoft’s obesity falls within the definition of disability under EU law and whether, by dismissing him, his employer may have been guilty of disability discrimination. The Danish court has asked for clarification from the European court as to whether the European Framework Directive, which sets the benchmark of discrimination laws across member states, can be interpreted to encompass obesity as a disability.

Williams said that, depending upon the outcome, the impact could prove significant for employers, particularly those in the UK, which continue to reveal the highest percentages of obesity in Europe.

She noted that discrimination law in the UK, the Equality Act 2010, has been interpreted as protecting physical and mental conditions that result from obesity, to the extent they meet specified criteria in terms of their nature, effect and duration; obesity itself has been rejected by the UK courts as a disability in its own right. If the European court reaches a contrary conclusion, she said, the Equality Act would need to be applied very differently.

‘If obesity is classified as a disability, the effect for employers could be profound,’ Williams said. ‘Obesity, however it will come to be defined, would need to be approached just like any other physical or mental impairment, preventing an employer from treating an employee less favourably because of their weight, not because of consequential medical problems. This would include the ability to dismiss.

‘Moreover, employers would need to think carefully about the potential impact of their practices or procedures upon those with weight issues, to avoid disadvantage. The primary change, however, would almost certainly arise in the context of the employers’ duties to make reasonable adjustments to the workplace or working arrangements. For example, access to the office may be an issue, requiring review of where the employee is located and their seating arrangements. On a more emotive note, might obese employees need to receive preferential access to car parking, for example?

‘Employers will no doubt watch the outcome of this latest litigation with interest. They will also be all too aware that the issue at its heart is one that will need to be broached on a practical level with sensitivity, whatever the legal position.’

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