In last week’s News Update we alerted readers to the case of Fag og Arbejde (FOA), acting on behalf of Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund which had to consider whether obesity can constitute a ‘disability’ within the meaning of the Employment Equality Directive. Kaltoft (K) is 1.72 metres tall and weighs over 160 kilograms, giving him a Body Mass Index of 54 and is considered obese under the definition of the World Health Organisation (WHO). K was dismissed from his position as a childminder at a time when there was a decrease in the number of children requiring care, but he claimed that one of the reasons for dismissal was his obesity and that this amounted to unlawful discrimination. A Danish court asked the ECJ whether obesity is prohibited generally by EU discrimination law in the labour market and whether obesity is a form of 'disability' under the EU Equal Treatment Framework Directive (ETD). As scheduled, the ECJ handed down it ruling on 18 December 2014 and the key parts of the judgment are as follows:

1.     In the area of employment and occupation, EU law does not lay down a general principle of non-discrimination on grounds of obesity as such.

2.     The concept of ‘disability’ within the ETD means 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.

3.     The concept [in 3 above] must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity.

4.     It would run counter to the aim of the ETD if its application was dependent on the origin of the disability.

5.     If, under given circumstances, the obesity of the worker entails a limitation which results in particular from physical, mental or psychological impairments which may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, such obesity can fall within the concept of ‘disability’ within the meaning of the ETD.

6.     An example [of 5] would be reduced mobility or onset of medical conditions related to or resulting from obesity preventing that person from carrying out work or causing discomfort.

7.     It is for the national court to determine whether obesity falls within the definition of ‘disability’.

As can be seen from the ECJ’s ruling, many of the reports in the national news were misleading where it was said, in effect, that the Court had ruled that ‘obesity is a disability’. That is not what the judgment says. The ECJ was quite clear on two key aspects: (i) the origin of the disability is not the determining issue; it is the effect of any physical or mental impairments which have to be considered; (ii) if an obese person has long-term physical or mental impairments, such as associated medical conditions, placing a ‘limitation’ on him or her which prevents full and active participation equally with other workers, then she or she could fall within the definition of a disabled person.

The ECJ’s ruling is in accord not only with the UK definition of disability but also with the way in which UK case law has dealt with obesity within the definition of disability, i.e. in Walker v Sita Information Networking Computing Ltd, 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.

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