Posted by Richard Woodman, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Morbid obesity ‘could be disability’
Severe or morbid obesity could be considered a disability under European Union (EU) law, according to a leading EU law officer.
Niilo Jääskinen, an Advocate General at the Court of Justice of the European Union (ECJ) issued his opinion in the Danish case of Karsten Kaltoft v Kommunernes Landsforening on 17 July.
Mr Kaltoft took legal action after his employment as a childminder, working for the Municipality of Billund to care for other people’s children in his own home, was ended in November 2010 after 15 years. The grounds for dismissal were given as a decline in the number of children but no specific reason was given for selecting Mr Kaltoft.
Throughout his employment, Mr Kaltoft never weighed less than 25 stone, giving him a body mass index (BMI) of 54 and classifying that as obese. The municipality denied that his obesity formed part of the reason for his dismissal but Mr Kaltoft claimed that the dismissal was rooted in unlawful discrimination against him due to his weight.
He took action in a Danish district court, claiming damages for discrimination. The Danish courts asked the ECJ to clarify whether EU law prohibited discrimination on the grounds of obesity or, alternatively, if it could be classified as a disability and fall within the scope of the EU Equal Treatment in Employment Directive.
Mr Jääskinen said that while there was no general principle in EU law prohibiting discrimination on obesity grounds, he considered that “if obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability”.
“Only extreme, severe or morbid obesity, that is to say a BMI of over 40, could suffice to create limitations, such as problems of mobility, endurance and mood, which amount to a ‘disability’ for the purposes of the Directive”.
The difficulty with interpreting these comments (if the Opinion is followed by the ECJ) would be that, supposing someone has a BMI of 38 or 39 – but nonetheless has the other characteristics referred to which might amount to a disability – are they disabled, or not?
Mr Jääskinen said it would be for the national court will determine whether Mr Kaltoft’s obesity fell within this definition above.
The Advocate General’s opinion is not binding on the Court of Justice, which will now begin considering the case, with a judgement to be given at a later date. Should the ECJ rule that morbid obesity be classed as a disability, UK firms could be required to make reasonable adjustments for affected workers under the Equality Act 2010.
Failure to make reasonable adjustments for a disabled employee is regarded as discrimination, which could result in a claim at an employment tribunal.
Royds’ employment law specialists are ideally placed to advise employers on their obligations to provide reasonable adjustments, which could involve changing working hours, providing extra support or aids to assist an employee with a disability or altering equipment or premises, to remove physical barriers.
It pays to employ the right employment solicitor