As we reported in Be Aware on 1 July, the ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination.
On 17 July the Advocate General gave his opinion in the case. The AG said that whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, severe obesity can be a disability covered by the protection against disability discrimination if it, in interaction with various barriers, hinders full and effective participation of the person concerned in professional life on an equal basis with other workers. By severe obesity the AG was referring to morbid obesity, meaning a BMI of 40 or more (around 21 stone for an average height man). If an individual is classified as morbidly obese, they may be disabled if the obesity has a real impact on their ability to participate in work.
This could have implications for both employers and service providers particularly in relation to the duty to make reasonable adjustments, if the ECJ takes the same view. We will be monitoring the case and will report further when the ECJ gives its judgment.