Business Law & Compliance

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Obesity can fall within the concept of ‘disability’

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Karsten Kaltoft, who has worked for for the Municipality of Billund (Denmark) as a childminder 15 years, was responsible for taking care of children in his home. 

On 22 November 2010, the municipality terminated his employment contract. While the dismissal was motivated by a decrease in the number of children he took care of, the municipality did not indicate the reasons as to why it was Kaltoft who was chosen to be dismissed. 

Throughout the duration of his employment contract, Kaltoft was considered obese under the definition of the World Health Organisation (WHO). Although Kaltoft’s obesity was mentioned during a meeting on his dismissal, the parties are in disagreement over the manner in which that issue was discussed. 

So, of course, the municipality denies that obesity is among the reasons for Kaltoft’s dismissal. 

Taking the view that the dismissal resulted from unlawful discrimination on grounds of obesity, the FOA, a workers’ union acting on behalf of Kaltoft, brought proceedings before a Danish court seeking a declaration of that discrimination as well as compensation.

In the context of assessing that request Denmark is asking the Court of Justice to specify whether EU law itself prohibits discrimination on grounds of obesity. It is also asking whether obesity can constitute a disability and therefore falls within the scope of the above directive.

In its judgment yesterday, the court stated that the general principle of non-discrimination is a fundamental right which forms an integral part of the general principles of EU law. This principle is therefore binding on member states where a national situation falls within the scope of EU law.

In that regard, the court determined that no provision of the treaties or of secondary EU legislation prohibits discrimination on grounds of obesity as such. In particular, the Employment Equality Directive does not cite obesity as a ground for discrimination and the scope of that directive should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively. 

Moreover, the Charter of Fundamental Rights of the European Union is likewise inapplicable in such a situation. So, in this case, the court considered that the case file contains nothing to suggest that a dismissal purportedly based on obesity would fall within the scope of EU law.

Consequently, the court holds that, in the area of employment and occupation, EU law does not lay down a general principle of non-discrimination on grounds of obesity as such.

As for whether obesity can constitute a ‘disability’ within the meaning of the directive, the court observed that the purpose of the directive is to lay down a general framework for combating discrimination, in the area of employment and occupation, on any of the grounds referred to in the directive, which will include disability.

The concept of ‘disability’ within the meaning of the directive must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. 

The court emphasised that this concept must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity. The directive has the object of implementing equal treatment and aims in particular to enable a person with a disability to have access to or participate in employment. In addition, it would run counter to the aim of the directive if its application was dependent on the origin of the disability.

Furthermore, the court observed that the definition of ‘disability’ comes before the determination and assessment of the appropriate accommodation measures that employers must take in each particular case so as to enable a person with a disability to have access to, participate in, or advance in employment. Therefore, the mere fact that such accommodation measures may not have been taken in respect of Kaltoft does not mean that he could not be considered a disabled person within the meaning of the directive.

On those grounds, the court finds that if, under given circumstances, the obesity of the worker entails a limitation, which results in particular from physical, mental or psychological impairments, that may hinder the participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, such obesity can fall within the concept of ‘disability’. 

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