07 August 2014 #Employment
Mr Kaltoft worked as a childminder for 15 years before he was dismissed. Throughout his employment, Mr Kaltoft had a BMI of over 40, making him ‘severely obese’ according to World Health Organisation rankings. His employer alleged that Mr Kaltoft’s obesity prevented him from performing his role fully, for example, by making it impossible for him to bend down to tie the shoelaces of the children in his care (although it also denied that it dismissed him because of his obesity). Mr Kaltoft believed that he had been dismissed because of his obesity and brought a discrimination claim in a Danish District Court.
The Danish court sought clarification from the European Court of Justice (ECJ) about the extent to which EU law protects obese workers from discrimination.
The ECJ’s Advocate General (AG) has recently given a written opinion on the question, which the ECJ is likely to. The AG’s opinion is therefore a strong indicator of the ECJ’s decision. However, it is only of particular significance to UK employers and workers if it is different from the way in which the UK courts and tribunals are already interpreting the discrimination legislation, and in particular the definition of disability.
In Mr Kaltoft’s case, the AG found that although EU law does not prohibit discrimination on the ground of obesity per se, it does of course prohibit discrimination on grounds of disability, and the effects of severe or morbid obesity (e.g. problems with mobility, endurance and mood) would probably result in a worker being classed as ‘disabled’ for the purposes of discrimination law. He remarked that, for the purposes of determining whether an obese worker is disabled, the origin of the obesity is irrelevant, so that a worker whose obesity-related symptoms were sufficiently severe could be disabled for the purposes of discrimination legislation irrespective of whether his obesity was due to a metabolic or psychological problem or simply over-eating and inactivity.
Even before the AG’s opinion was given in Mr Kaltoft’s case, employers and employees alike protested in the national press and on social media that obesity should not be ‘redefined’ as a disability, because (unlike ‘genuine’ disabilities) it is a self-inflicted and voluntary condition.
Whilst it is true that employers must treat some severely obese workers as if they were disabled (including by making reasonable adjustments for them), it is not accurate to say that the AG has (or the ECJ will) ‘redefine’ obesity as a disability. The AG’s opinion is that discrimination on grounds of obesity is not unlawful per se, and an obese worker will not be protected by the discrimination legislation unless the effects of his obesity are so severe (e.g. in relation to mobility, endurance or mood) that he falls within the definition of disability. This is not a new interpretation of the law relating to disability discrimination, at least in the UK. The Employment Appeal Tribunal (EAT) had already reached a similar conclusion to the Advocate General in the case of Walker v Sita Information Networking Computing Limited UKEAT/009/12.
In that case, the obese claimant suffered from a number of physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, bowel problems, and anxiety and depression) which were compounded by his obesity. The Employment Tribunal (ET) held that the claimant was not disabled because a medical expert had been unable to identify a physical or organic cause for the claimant’s conditions, other than his obesity. The EAT overturned the ET’s decision and held that the claimant was disabled. The issue was whether the claimant met the definition of disability for the purposes of the discrimination legislation, i.e. whether he had a physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The EAT confirmed that the focus should be on whether the claimant had an impairment and on the effects of that impairment, not its cause. Obesity does not, of itself, render a worker disabled. However, its symptoms may (in some cases) result in the worker meeting the statutory definition of disability.
The advice for employers who wish to avoid breaching disability discrimination legislation therefore continues to be: