Mr Kaltoft had been employed by the Municipality as a child-minder. He had been obese over a long period of time, with the Municipality paying for him to attend a fitness programme for one year. He also attempted a gastric bypass operation. He was selected for redundancy after a meeting where his obesity was raised. The parties differ as to how the issue of his obesity came up in conversation but Mr Kaltoft maintained that he had been selected for redundancy based on his obesity. The Municipality defended the claim on the basis that the redundancy was genuine and attributable to a decline in the number of children being cared for. The national courts referred the case to the ECJ to determine whether obesity was protected in its own right and/or whether obese workers could qualify for protection as disabled persons.
Advocate General’s Opinion
In July 2014, the Advocate General gave an opinion that morbid obesity may amount to a disability. Whilst there was no free-standing prohibition on discrimination on the grounds of obesity within EU law, it was possible for morbid obesity to amount to a disability where it hindered a worker’s full participation in professional life on an equal footing with other workers.
The ECJ has largely followed the Advocate General’s opinion. It has decided that obesity does not qualify for protection from discrimination in its own right. However, an obese worker may qualify for protection as a disabled person where the effects of the obesity are long-term and hinder the full and effective participation in professional life on an equal basis to other workers.
The ECJ decision reiterates that the cause of the impairment, including whether or not it is perceived to be “self-inflicted”, is irrelevant for the purposes of determining whether somebody is protected as a disabled person. Indeed, the ECJ states that: “it would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability.” The concept of disability: “does not depend on the extent to which the person may or may not have contributed to the onset of his disability.”
The ECJ departed from the Advocate General’s Opinion solely in that their ruling is not limited to those individuals who are classified by the World Health Organisation as being morbidly obese, with a BMI above 40. The national court must determine whether the individual meets the various conditions required to qualify as disabled.
This decision confirms the position under English law whereby obesity may amount to a disability where it has a substantial and adverse effect upon an individual’s ability to carry out normal day-to-day activities and that effect is long-term (i.e. has lasted or is likely to last 12 months). In the EAT case of Walker v. Sita Information Networking Computing Ltd, it was already established that you look at the effect of the impairment rather than its cause, with the result that an individual who suffered from a range of symptoms, which were accentuated by his being obese, qualified as a disabled person.
Employers must be aware of their duty to make reasonable adjustments where obesity impairs an employee’s full participation in the workplace (for example, by affecting mobility). They also need to guard against negative attitudes from co-workers, which can give rise to harassment claims. In that regard, it is important to note that the barriers to which the ECJ refers can “attitudinal and environmental barriers.”