UK: ECJ opinion that obesity is not a disability, but severely obese employees may be disabled

The Advocate General of the European Court of Justice has given his opinion rejecting the contention that EU law prohibits discrimination on the ground of obesity per se. However, the effects of obesity may mean that an obese individual satisfies the definition of disability.

This is largely consistent with the approach taken by the Employment Appeal Tribunal in Walker v SITA in 2013. However, the publicity surrounding this case (concerning a childminder allegedly dismissed due to his obesity preventing him from carrying out his duties, such as bending down to tie children's shoelaces) may mean employers face an increase in claims, assuming the ECJ takes the same line when it gives its judgment. Obese employees and job applicants may claim discrimination or harassment, or contend that an employer has a duty to make reasonable adjustments such as larger office furniture or work equipment, preferential parking arrangements, or changes to duties or work location to accommodate reduced mobility.

The Advocate General emphasised that it is irrelevant whether the obesity is caused by "simple excessive energy intake in relation to energy expended" or by a psychological or metabolic problem or side-effect of medication – the fact that a disability is self-inflicted does not prevent it being a protected disability. Where the obesity has reached a degree which "in interaction with attitudinal and environmental barriers … plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails", then it can be a disability.

More helpful to employers was the Advocate General's comment that, in his view, "most probably" only employees with a BMI of over 40 (morbidly or severely obese) will qualify as disabled by having sufficiently serious limitations such as "problems in mobility, endurance and mood". Given that UK law limits protection to disabilities that are likely to last at least 12 months, tribunals may also have to consider whether an individual is likely to make successful efforts to reduce their weight sufficiently within the 12 month time frame.

The ECJ's judgment is expected in the next few months and, although the Advocate General's opinion is not binding on the Court, it is often followed.  

Kaltoft v The Municipality of Billund, C-354/13