In FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of BillundKarsten, Kaltoft (K) had been employed as a child-minder for fifteen years when his employment was terminated on the grounds that the number of children needing care had declined. However, there was no express reason given for selecting K. Throughout his employment K never weighed less than 160kg (25 stone) and, with, therefore, a BMI of 54, he was classified as obese. K claimed that his dismissal was rooted in unlawful discrimination against him due to his weight, and took action in a Danish Court claiming damages for discrimination. The Danish Court asked the ECJ to clarify whether EU law, notably the Treaty and Charter, includes a self-standing prohibition on discrimination on the grounds of obesity. Alternatively, it asked if obesity can be classified as a disability and therefore fall within the scope of the Equal Treatment in Employment Directive.

Advocate General Jääskinen has given an opinion that whilst there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right, morbid obesity may come within the meaning of ‘disability’ if it is of such a degree as to hinder full participation in professional life on an equal footing with other employees. The Advocate General adds that the origin of the disability is irrelevant. The notion of disability is objective and does not depend on whether the applicant has contributed causally to the acquisition of his disability through “self-inflicted” excessive energy intake. Otherwise physical disability resulting from reckless risk-taking in traffic or sports would be excluded from the meaning of disability.

The AG’s opinion confirms that: (i) there is no stand-alone prohibition on discrimination on grounds of obesity in EU law; and (ii) the issue is not the cause of the impairment, but its effects on day-to-day activities. As the AG states, it would be for the national court to determine whether the definition of disability applies by determining whether obesity has reached such a degree that its effects plainly hinders participation in professional life. It is usual for the ECJ to adopt an AG’s opinion but it is not obliged to do so.

The AG’s opinion confirms the position established in UK law in Walker v Sita UKEAT/0097/12, where the EAT found that although not in itself a disability, obesity was capable of being an impairment for Equality Act 2010 purposes if it produced a substantial impact on daily activities for example by causing mobility issues, and if the effect is long-term (lasting a year or more, or likely to do so). The focus is not on the cause of an impairment, but whether the individual actually has an impairment and its effects. Walker did suffer on a log-term basis from asthma, dyslexia, diabetes, high blood pressure, chronic fatigue syndrome, bowel problems, anxiety, depression and joint pains, all as a result of, or compounded by, obesity. The resulting substantial adverse effect on normal activities meant Walker came within the definition of a disabled person.

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