Obesity could be covered by anti-discimination law

Employers could be legally required to bear the costs of all necessary reasonable adjustments to accommodate the needs of severely obese employees after an opinion delivered by the Advocate-General of the Court of Justice of the European Union (CJEU).

The opinion relates to the Danish case, Karsten Kaltoft v Billund Kommune, in which a childminder who weighed 25 stone and had a body mass index (BMI) of 54 was dismissed because his size prohibited him from carrying out some of the duties of his role.

The case was referred to the CJEU by the Danish courts to establish whether obesity amounts to disability under the Equal Treatment Directive, which prohibits discrimination in the workplace.

Advocate-General Jaaskinen, Europe’s most senior legal adviser, gave his opinion that, while there is no general principle of EU law prohibiting discrimination on the grounds of obesity in its own right, it is unlawful for employers to discriminate against someone on the grounds of obesity, where it hinders participation in professional life.

In his opinion, only extreme, severe of morbid obesity (a BMI of over 40) could suffice.

The Advocate-General stated that, although there is no obligation to maintain an individual in employment who is not competent to perform the essential functions of their post, reasonable measures should be taken to accommodate the disabled individual, unless the burden on the employer would be disproportionate.

The opinion will now be considered by the CJEU to determine whether Kaltoft’s obesity falls within this definition. Although it is not binding on the CJEU, in most cases the Advocate-General’s opinion is followed.

Nick Elwell-Sutton, employment law partner at Clyde and Co, said: “A practical difficulty for employers is likely to be determining when an overweight employee tips into being morbidly obese, and so having a disability.

“In most cases, it will be a difficult and sensitive issue to discuss with an employee, and just raising the issue of obesity with an employee could be perceived as offensive.

“Another challenge for employers will be having to adapt and reorganise workspaces to accommodate a morbidly obese employee who has mobility problems.

“Other related issues that could arise include whether a morbidly obese employee should have preferential access to a car parking space at work.” 

Elizabeth Slattery, head of employment at Hogan Lovells, added: “Although the opinion is not binding on the [CJEU], it is more often than not followed in the final hearing.  

“This opinion is in line with the [CJEU’s] broad view of the meaning of disability, concentrating on the effect of the disability on the employee’s ability to work at full capacity.”