Facts Karsten Kaltoft, a Danish childminder, was dismissed from his employment on the basis that he was too overweight to bend down and tie his shoe laces. Mr Kaltoft weighed 25 stones at the time of his dismissal in 2010. He argued that his weight was one of the reasons for his dismissal and therefore he had been subject to unfair discrimination. His employer disputed this and asked the ECJ to rule on whether or not obesity could be considered a disability.
Law UK legislation, under the Equality Act 2010 (EqA), lists disability as one of the protected characteristics. This provides an individual, who is deemed to be disabled in terms of the law, with certain protections. This includes the right not to suffer discrimination and the right to require an employer to make reasonable adjustments to accommodate the disability within the workplace.
The statutory definition of disability under section 6(1) the EqA is as follows: "A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". ‘Normal day-to-day activities’ can include such things as getting washed and dressed, walking and participating in social activities.
Decision In his ruling, advocate general Niilo Jaaskinen said EU law did not prohibit discrimination on the grounds of obesity in particular but argued that very severe obesity, which is defined as a body mass index (BMI) higher than 40, could be described as a disability. Mr Kaltoft had a BMI rating of 54.
He rejected an argument that a self-inflicted illness was not worthy of protection, stating: "The origin of the disability is irrelevant. [It] does not depend on whether the applicant has contributed causally to the acquisition of his disability through 'self-inflicted' excessive energy intake." He did not, however, determine that every instance of morbid obesity must be considered a disability, with each case depending on the particular circumstances.
Comment Julie Sabba, an associate in our employment team, comments: “The advocate general’s opinion will now require to be considered in detail by the ECJ, which, although not binding, is usually followed by the court. If it does uphold this view it could have widespread implications for employers. “As part of the duty to make reasonable adjustments an employer could be required to make certain changes for an obese employee, such as altering office furniture, reducing the frequency of walking associated with a role or providing car parking spaces close to the workplace. “Furthermore, tackling this issue with obese employees will require a professional approach to what can be a sensitive subject.”
