Readers will recall that in July of this year we reported that ECJ Advocate General Jaaskinen had given his opinion in FOA, acting on behalf of Karsten Kaltoft v Billund Kommune that whilst disability is not defined in the Equal Treatment Directive (ETD), past cases have referred to any physical, mental or psychological impairment that ‘may ‘hinder the full and effective participation of the person in professional life on an equal basis with other workers’.

Therefore, morbid obesity might fall within the definition of “disability” under the ETD if the aforementioned case law definition is satisfied. We also highlighted that the AG’s opinion was in accord with UK case law, i.e. Walker v Sita Information Networking Computing Ltd, where the EAT held that obesity is not an impairment of itself, but the effects of medical conditions arising out of, or contributing to, obesity may result in a claimant being disabled if they have a substantial and long-term adverse effect their ability to carry out normal day-to-day activities.

The full ECJ decision is scheduled to be delivered next week, on 18 December 2014, and should bring finality to the issue.

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