Labour & European Law Review Weekly Issue 407 18 February 2015
Although there is no law prohibiting employers from discriminating against someone because they are obese, the Court of Justice of the European Union (CJEU) held in Kaltoft v Municipality of Billund that obesity can constitute a disability if it limits the person concerned from fully participating in professional life on an equal basis with other workers.
Mr Kaltoft worked for 15 years as a childminder for the Danish municipality of Billund taking care of children in his own home. Due to a reduction in the number of children who needed to be looked after, the municipality decided to cut back on childminders and told Mr Kaltoft in November 2010 that he would be dismissed.
At a meeting to discuss the dismissal, he asked why he was the only childminder being made redundant because of an alleged decline in workload. Both parties agreed that the issue of his obesity was mentioned in the meeting but disagreed as to the context in which it was raised. The FOA, a workers’ union acting on behalf of Mr Kaltoft, brought proceedings before a Danish court seeking a declaration that he had been discriminated against because of his obesity as well as compensation..
The District Court of Kolding asked the CJEU to decide whether it was contrary to EU law to discriminate against someone on the ground of obesity; and whether obesity could constitute a disability under the equal treatment directive. If so, it asked the Court to specify what criteria were decisive in determining whether an obese person was protected against disability discrimination.
Decision of CJEU
Although the general principle of non-discrimination is a fundamental right and an integral part of the general principles of EU law, the CJEU confirmed that there is no law which specifically prohibits discrimination in employment on the ground of obesity as such.
In answer to the second question (whether obesity can constitute a “disability” within the meaning of the directive), the Court made clear that the purpose of the equal treatment directive was to lay down a general framework for combating discrimination in employment, on any of the grounds referred to in the directive, including disability.
The concept of disability had to be understood as referring to 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 the person concerned in professional life on an equal basis with other workers”. The origin of the disability was irrelevant as was the extent to which the person may or may not have contributed to its onset.
Although obesity did not in itself constitute a disability, if the worker’s obesity in a specific case entailed a long-term limitation which resulted in particular from physical, mental or psychological impairments that hindered their full and effective participation in professional life on an equal basis with other workers, it could be covered by the concept of “disability” within the meaning of the framework directive.
In the present case, Mr Kaltoft had been obese for the entire period he was employed by the Municipality of Billund (in other words, for a long time). It was therefore up to the Danish district court to decide whether his obesity entailed a limitation which met the conditions set out by the Court.
With the NHS estimating that one in four of the UK population is obese, the implications of this case are far reaching. Employers who currently carry out risk assessments and make reasonable adjustments for disabled or unwell employees, probably already apply the same policies to obese employees, if they have impairments affecting their ability to walk upstairs, for example, or to carry heavy loads. The best advice for employers is to ensure their existing policies and procedures are robust. Employers would also do well to consider how to help employees adopt a healthy lifestyle and so avoid the ill health associated with obesity – whether or not that is classed as a disability.