The Court of Justice of the European Union (CJEU) has held, in Karsten Kaltoft v Municipality of Billund, that obesity can constitute a disability for the purposes of EU discrimination law, albeit only where the requirements for a person to establish they are disabled are satisfied. Obesity of itself is not a disability for the purposes of the legislation.

The CJEU decision

The CJEU was asked to consider the case of an overweight childminder in Denmark who brought a discrimination claim against his employers after he was dismissed. The employer said his dismissal was due to a fall in the number of children requiring care but Mr Kaltoft alleged that he was dismissed because he was overweight.

In essence the CJEU held that discrimination on the grounds of obesity is not itself unlawful. However, the court held that, if “the obesity of the worker entails a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers”, the worker’s obesity can fall within the concept of ‘disability’ within the meaning of the relevant EU directive. The origin of the disability, or the factors contributing to it, are irrelevant to the issue of whether a person qualifies as disabled.

What this means is that, if an individual’s obesity hinders the individual’s participation in professional life by way of reduced mobility preventing that person from carrying out work or causing discomfort when exercising a professional activity then the individual will be disabled person for the purposes of EU law. The issue is the impact upon the individual of his or her obesity rather than the obesity itself. The matter is one for the national court to decide so the court in Denmark will now have to assess Mr Kaltoft’s specific situation to determine whether he should be classed as disabled.

In reaching its decision, the CJEU did not adopt the approach which had been recommended to it by the Advocate-General earlier in the proceedings. The Advocate-General had taken the view that most probably only Class III obesity under the World Health Organisation categorisation (i.e. severe, extreme or morbid obesity) will create limitations, such as problems in mobility, endurance and mood, that amount to a disability for the purposes of the Directive. Whether an individual is disabled for the purposes of the legislation is therefore to be determined by the specifics of the particular case and is not limited by the medical categorisation adopted by the World Health Organisation.

Practical consequences

The CJEU decision does not of itself change UK law in relation to the technical issue of whether an individual is disabled for the purposes of the Equality Act 2010 - which is the domestic legislation implementing into UK law the relevant EU Directive. An individual still needs to be able to show, in order to qualify for the protection of the disability discrimination legislation, that he or she has a physical or mental impairment which has a substantial adverse impact on his or her ability to perform day to day activities and which is sufficiently long term by having lasted or being likely to last for 12 months or more. In effect the CJEU has ruled not that obesity itself is a disability, but rather that its effects can lead to the individual being disabled for the purposes of the disability discrimination legislation. If an individual’s obesity leads to specific adverse impacts – such as, for example, mobility issues, joint problems or depression – then the protections of the Equality Act 2010 may engage depending on the seriousness and duration of those problems.

Employers therefore need to appreciate that, depending on its effects, an employee’s obesity may lead to the individual being disabled for the purposes of the legislation thereby potentially triggering the duty to make “reasonable adjustments” – which might relate to issues of access to the working environment, seating arrangements or the day to day performance in practice of the individual’s duties. Whether the legislation applies in a particular case remains very much fact specific but employers do need to appreciate the potential for the disability discrimination legislation to apply in cases of obesity and to train managers accordingly.