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Severe obesity may be a disability
In a case which may have serious implications for employers, the Advocate General has given his Opinion to the ECJ that severe obesity may amount to a disability under the EU Equal Treatment Framework Directive. The case of Kaltoft v Municipality of Billund deals with an individual who was employed as a child minder in Denmark and was dismissed because he was severely overweight. He is 1.72 metres tall (around 5 feet) and weighs around 25 stone, with a BMI of 54. Under the World Health Organisation Classifications he would be classified as class 3 obesity which is described as “severe, extreme or morbid obesity”. His claim before the Danish Court was referred to the ECJ to ask the question whether obesity fell within the discriminations prohibited under EU law.
The Advocate General did not accept that there was a general prohibition on discrimination on the grounds of obesity within the EU law. However he did give the opinion that obesity may meet the description of disability if it was severe to the extent of hindering the individual in carrying out their professional life. The Advocate General’s view was that “most probably” only those with World Health Organisation class 3 obesity with a BMI of over 40, which would cause problems with mobility, general stamina, and mood, would be sufficient to amount to a disability.
It will be interesting to see whether the ECJ follows the Advocate General’s Opinion. There are clear issues if it does, because if the level of what falls within or outside a disability is a BMI of 40, what happens with an individual who has a BMI of 38 or 39 but who finds that their obesity severely impairs their ability to carry out normal day to day activities? It is hoped that the ECJ will address these issues in its judgment.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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