Severe obesity may be considered a disability
The Advocate General’s recent Opinion that severe or morbid obesity might fall within the definition of disability generated a great deal of media interest in the case of Karsten Kaltoft v Kommunernes Landsforening acting on behalf of the Municipality of Billund.
Mr Kaltoft had worked as a childminder in Billund, Denmark for 15 years and was dismissed in November 2010. Throughout his employment, Mr Kaltoft weighed around 25 stone and had a Body Mass Index (BMI) of 54. According to the World Health Organisation, BMI in excess of 40 is categorised as class 3 obesity (the most severe category) described as extreme or morbid obesity.
The written reason for Mr Kaltoft’s dismissal was the decline in the number of children. Obesity was not mentioned in the dismissal letter and Mr Kaltoft was not told why he, out of several childminders employed by the Municipality, was selected for dismissal. Following his dismissal Mr Kaltoft brought proceedings in the Danish District Court that he had been unlawfully discriminated against because of his obesity. The matter was referred to the ECJ which was asked to consider two issues:
- Does EU law have a general prohibition on all forms of discrimination that includes obesity?
- Alternatively, can obesity be classified as a disability within the scope of the Equal Treatment Framework Directive?
In relation to the first issue, the Advocate General’s view was that there was no general prohibition in EU law prohibiting discrimination on the grounds of obesity itself. Rather, EU law addressed specific grounds of discrimination and a prohibition on obesity discrimination could not be inferred from these.
As for the second issue, the Equal Treatment Framework Directive for combating discrimination in employment extends to “disability” which is not defined. However, some principles established by case law are that “disability” means limitations which result from long-term physical, mental or psychological impairments which may hinder the full and effective participation in professional life compared to other workers without that condition. The Advocate General concluded that severe obesity such as WHO class 3 obesity, might constitute a disability under the Framework Directive if it creates limitations, for instance, in relation to mobility and endurance. Obesity in itself however is unlikely to amount to a disability.
It will be several months before the ECJ gives its judgment and although the Opinion is not binding on it, the ECJ generally follows Advocate Generals’ Opinions. If it does in this case, then it will be for the national court to determine whether or not Mr Kaltoft’s obesity hindered his full and effective participation in professional life on an equal basis with other workers. Arguably, it didn’t. Mr Kaltoft had worked for 15 years as a childminder for the Municipality and he had participated in professional life on an equal footing with the other childminders. His obesity may not necessarily have hindered his work as a childminder.
In the UK, the Equality Act 2010 provides that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. In the context of obesity, it is important to remember the EAT’s decision last year in the case of Walker v Ceta Information Network Computing Limited. Mr Walker weighed around 21 stone and suffered from a range of symptoms including asthma, knee problems, high blood pressure and diabetes. These symptoms resulted in pain in his head and joints as well as shortness of breath and caused significant difficulties in Mr Walker’s day to day activities. Even so, the Employment Tribunal held that Mr Walker was not disabled.
The EAT overturned that decision and held that the combination of various physical and mental conditions and “functional overlay” compounded by obesity constituted a disability. Although obesity itself did not render a person disabled, it could make it more likely that somebody was in fact disabled.