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25th July 2014

Tribunal Tale – Discrimination and Obesity – The Story So Far

As the concern over obesity and its potential social and economic impact increases, questions have been raised in the world of employment law. Does UK or European law provide protection against discrimination on the grounds of obesity? Specifically, is obesity a disability?

The statutory definition is that “a person has a disability if he has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

The questons above were addressed in the UK last year in the case of Walker v Sita Information Networking Computing Ltd. That case held that obesity is not a disability in its own right but that symptoms and conditions caused by obesity could constitute an impairment having the effect set out in the legislation.

A Danish case, Kaltoft v The Municipality of Billund, is currently before the Court of Justice of the European Union (CJEU) and the Advocate General issued his opinion on 17 July. In terms of the World Health Organisation’s classifications, people with a Body Mass Index in excess of 40 are, what is commonly referred to as, morbidly obese. Mr Kaltoft, who worked as a childminder, had a BMI of 54 and claimed his obesity was the reason for his dismissal. Mr Kaltoft’s obesity was discussed in a meeting which took place as part of the dismissal process but nothing relating to his obesity was referred to in the reasons given for the dismissal.

The Advocate General’s opinion takes the same approach as the UK case. The Advocate General expressed the view that where the obesity is such that it “hinders full and effective participation of the person concerned in professional life on an equal basis with other workers” it can be a disability. The CJEU will, in most cases, follow the opinion of the Advocate General and it seems likely they will do so in this case.

While simply having a Body Mass Index which is classified as obese will not automatically afford an employee protection from discrimination, if obesity is having a substantial impact on him or her they may fall within the definition of disability. What is important to understand is the limitations on an employee’s abilities and not necessarily the cause of those limitations.

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25th July 2014