There is currently a Danish case – Kaltoft v The Municipality of Billund - in the European Court of Justice concerning obesity, and whether this can be classed as a disability. The ECJ referred the issue to the Advocate General for an opinion on the law before progressing with the claim.
Employers have long since been prevented from discriminating against workers due to their disabilities; the law was enshrined in the Equality Act 2010. Although there are some conditions which are expressly stated to be a disability (i.e. cancer), there is a test with certain criteria which must be met for someone’s condition to be classed as a disability. It is very much subjective and based on the affect it has on that person. The Advocate General released his opinion on whether obesity could be classed as a disability yesterday (17 July 2014). He has stated that “Cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered a disability”.
There are two things important to note from this:
1. He has not stated that it is, merely that it may be classed as a disability; and
2. His decision is not binding. The ECJ can choose to follow it or not, or even follow the test and decide that it is not a disability.
We need to wait and see what the ECJ decide to do, and as always, the decision from the court will have far reaching repercussions.
If they do decide that Mr Kaltoft is disabled, employers in England and Wales will have to ensure that they are not discriminating against people based on their obesity. There will also be the duty to make reasonable adjustments; of course these may vary based on each individuals limitations but these may include a duty to provide bigger chairs and desks, nearer car parking spaces and offering duties involving less mobility.
One thing is for sure, people are bound to see this as a very controversial issue, however as the Advocate General has stated, just because obesity is self-inflicted, it is not any less worthy of being classed as a disability than other afflictions.
If you have any queries on this or any other employment related issues, call the employment law team on 0113 320 5000.
