This was the question facing the European Court of Justice (ECJ) in the recently heard case of FOA (Kaltoft) v Billund.
The ECJ held that obesity can be considered as a disability, but obesity, in itself, is not a protected characteristic, and discrimination on the grounds of obesity is not unlawful.
In this case, Mr Kaltoft was a clinically obese childminder for a local council in Denmark. He was dismissed due to redundancy. He alleged that his obesity was a factor in his selection for redundancy and brought a claim for discrimination. The District Court referred four questions to the ECJ regarding obesity for a preliminary ruling.
The first two questions related to whether it was unlawful to discriminate against a person on the grounds of obesity, and whether such a right was directly applicable. The third question considered what the appropriate burden of proof.
The ECJ held that obesity, itself, could be regarded as a ground for protection against discrimination, and therefore the second and third questions were not relevant.
The final question related to whether obesity could be deemed to be a disability under EU Directive 2000/78/EC. If it could be a disability, it was then necessary to consider how to determine if an obese person was protected against disability discrimination.
The ECJ held that obesity could be a disability in circumstances where a person’s obesity entails a limitation which results, in particular, from physical, mental or psychological impairments that, 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, and the limitation is a long-term one.
It would not be necessary to consider the origin of the disability, or contribution to it, as these were irrelevant.
In the UK, it will now be for Employment Tribunals to determine whether the conditions required for obesity to be a disability are met.
If the circumstances are present, a worker with long-term obesity could therefore, be regarded as being disabled.
This news will give employers something to consider, as they could now be required to make reasonable adjustments to assist obese employees in the workplace, when previously this was not the case.
If the content of this article is relevant to you and your employment, please contact the specialist employment department at Oakwood Solicitors, and we will be happy to discuss your situation with you.
