Recent reports suggest that around 64% of men and 57% of women in the UK are overweight or obese, and nearly half of the UK population are predicted to be overweight by 2050.

In light of these statistics, the recent opinion by the Advocate General in the European case of Kaltoft v The Municipality of Billund could, if followed by the European Court later this year, notably extend disability discrimination protection for employees who are extremely or morbidly obese.

In the UK, the law on disability discrimination is contained in the Equality Act 2010, where disability is defined as a physical or mental impairment which has a substantial adverse effect on the employee’s ability to carry out normal day-to-day activities.   

In simple terms, when dealing with disabled employees, employers are under a legal obligation to:

  • refrain from treating the individual less favourably because of, or for a reason arising from the disability;
  • refrain from operating policies or practices that put disabled employees at a particular disadvantage compared to others (unless such a practice or policy can be objectively justified); and
  • make ‘reasonable adjustments’ to working practices and/or premises.

In the Kaltoft case, Mr Kaltoft was employed as a childminder by the Municipality of Billund, in Denmark, until he was dismissed in late 2010 after 15 years of service.  Mr Kaltoft claimed that he had been dismissed for a number of reasons, including his obesity, and claimed that his treatment amounted to disability discrimination.   Mr Kaltoft sought compensation for the way in which he was treated.

During his employment, Mr Kaltoft had always been obese according to World Health Organisation rankings.  Mr Kaltoft argued that his obesity was covered by the general prohibition under EU law of discrimination in the workplace.  He also argued that obesity is a form of disability, and so he should have received protection in his workplace.

The Advocate General‘s opinion acknowledged that there is no general principle under EU law which outlaws discrimination on the grounds of obesity, but commented that a case of ‘severe’ or ‘morbid’ obesity (where the individual has a body mass index of 40 or above), might fall within the definition of what amounts to ‘disability’ under European law in cases where such severe obesity prevents the individual from fully and effectively participating in working life.

So what next?

The opinion of the Advocate General is often followed by the European Court. If the opinion is followed in this case, severely obese employees would become a new category of employee entitled to protection from discrimination, regardless of how they came to be severely obese.

In the meantime, it is worth remembering that even if severely obese employees are not currently, by virtue of their obesity, covered by disability discrimination legislation, obesity can often exist alongside other medical impairments such as diabetes which may amount to a disability.  Last year, the Employment Appeal Tribunal in the UK held that an obese man was disabled due to the effect of his various physical and mental impairments.

This means that when managing sickness absence of obese employees now, or thinking about adjustments in the workplace, it is sensible to seek specialist medical input and take care with decisions to avoid a successful disability discrimination claim.

We will update you when the European Court reaches its final decision.

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