In the future, it seems that extreme obesity may be classified as a disability under European Union law, which will provide protection for morbidly overweight workers who suffer discrimination at work, as advised by European court rules. This stemmed from the Advocate General of the European Court of Justice in Luxembourg who issued a preliminary ruling on a claim by Karsten Kaltoft. The case that was followed up on involved the Danish childminder who weighed 160kg (25 stone), and was dismissed by his local city council in 2010 after reportedly being unable to bend down to tie up shoelaces. Kaltoft argued that his weight was one of the reasons he lost his job and therefore it amounted to unfair discrimination while his employer, Billund City Council, responded by disputing the allegation. Whilst the advocate general’s opinion is not binding, it is usually followed by the court whose judgements consequently have force across the whole of the European Union.
According to the Advocate General of the European Court, obesity can constitute a disability within the scope of the equal treatment framework directive. If this opinion on the case of Kaltoft versus Municipality of Billund is reflected in the final court decision, severely obese employees will not need to show they have other impairments to be regarded as disabled under the UK’s Equality Act 2010. Niilo Jaaskinen, who advised the court, found that the EU law did not prohibit discrimination specifically on the grounds of obesity, but concluded that very severe obesity which is classified as a body mass index (BMI) of more than 40 could be considered a disability, arguing that: ‘If obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability’. He additionally threw out the consideration that a self-inflicted disability is possibly less worthy of protection, maintaining that: ‘The origin of the disability is irrelevant. [It] does not depend on whether the applicant has contributed causally to the acquisition of his disability through “self-inflicted” excessive energy intake.’
Glenn Hayes, an employment partner at the UK law firm Irwin Mitchell, stated that: ‘This could mean that employers could find themselves under a legal obligation to make adjustments such as providing car park spaces close to the workplace entrance for obese employees, providing special desks, or providing duties which involve reduced walking or travelling, or possibly even ensuring that healthy meal options are provided at their staff canteen.’ Additionally, Nicola Rabson, of Linklaters law firm, noted that: ‘This decision shifts the burden of keeping those who are severely obese in the workforce to employers, who must make adjustments to accommodate any special requirements arising from a person’s disability. Obesity, particularly severe obesity, can be a sensitive subject, so employers will have to tread carefully and not make assumptions about the needs of an obese worker.’
Currently, the Court of Justice of the European Union (CJEU) focuses on whether the employee suffers from a long- term impairment that interacts with other barriers to hinder that person’s ‘full and effective participation…in professional life’ on an equal basis with other workers. Whilst In the USA, several recent cases have resulted in dismissed workers winning claims that they were discriminated against for being obese, UK courts have not yet recognized obesity as a disability where the latest figures suggest that around 25 percent of UK adults are classed as obese.
Some may consider that if one is unable to do their job due to getting to such a state in which they can no longer work effectively, then perhaps the act of dismissal is unfair to be labelled as discrimination. On the other hand, in Kaltoft’s case, he denied not being able to do his job of looking after children properly because of his weight. ‘I can sit on the floor and play with them, I have no problems like that,’ he said, ‘I don’t see myself as disabled. We hope the outcome is that it’s not OK just to fire a person because they’re fat, if they’re doing their job properly.’
A consideration that must be applied to the possible law framework that would establish obesity as a disability is the likelihood that there will be difficulties for employers to try to establish whether or not an employee is disabled for the purposes of the Equality Act and whether the duty to make reasonable adjustments has been triggered. Perhaps having a discussion about an employee’s weight and considering whether adjustments are required is also something managers may find challenging. Kaltoft appeared to argue that it was his physical appearance rather than his ability to do the job which was behind the decision to dismiss him.
However, if this amounts to direct discrimination, then what about other kinds of ‘lookism’, for example, for air hostesses or models at retail shops, would these instances also have to be considered if the idea of appearance plays a bigger factor? Moving back to the idea of obesity as a disability, perhaps it would be rather concerning to place obesity that can stem from lifestyle in the same category of disability as blindness or deafness. This case may then open up the way for arguments to medicalize obesity as a condition in itself.
However, given that obesity has well-documented physical effects that range from restricted mobility, to diabetes and certain forms of cancer, this makes it a very important and complex matter where those who struggle with it should be treated with sincerity and offered ways to improve their health and wellbeing, as with any other type of illness. Although obesity may not widely be caused by a medical condition, there are many factors that induce it that should be addressed, though this may not be sufficient to yet label it as a disability in the UK despite the fact that it has disabling consequences.
The UK’s stance on the matter, overall, seems most reasonable: while obesity is not a disability in itself, when, such as in the case of Kaltoft, it leads to substantial physical and mental impairments, this means that one qualifies as a disabled person under the Equality Act. In relation to the idea of dismissing an employee because of a physical disadvantage, it is likely to be discriminatory unless it directly affects their ability to do their job.