The case concerned Mr. Kaltoft, an obese Danish child-minder, who claimed that he had been dismissed by his employer because of his weight. His case was taken up by the Danish Union of Public Employees and referred by the local District Court to the CJEU, which found that there is no general principle of EU law prohibiting discrimination on grounds of obesity. It held that a disability is a limitation caused by long-term impairments (be they physical, mental or psychological) which may affect an individual’s ability to fulfil their role in the same way as other workers.
Such disability will include both a complete inability and a reduced ability to perform a work-related task. The extent to which a disability is brought on by the individual themselves, such as an obese worker contributing to their own obesity through poor diet or lack of exercise, will not affect whether or not they are determined to be disabled.
The CJEU held that to define disability in any other way would be incompatible with the objective of the Employment Equality Framework Directive 2000/78/EC (the Directive) which is to ensure disabled people have equal access to employment. It was a matter for the Danish court to decide whether, in fact, Mr. Kaltoft was disabled and the onus was on his employer to prove that he had been treated equally.
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This case caused something of a media storm in December when it was published, on the basis that obesity was now a disability and employers would have to purchase specialist furniture, provide car parking near the office and offer employees dietary advice (Mail Online 18 December 2014). The fear is that the case offers employers little certainty as to whether obese claimants are to be considered disabled and that a proliferation of obesity-related disability discrimination claims will result in an increased burden for employers. Some have also called for a need to differentiate between individuals who are obese for an underlying medical reason and those who are obese as a result of what they perceive as a “lifestyle choice”.
The CJEU’s decision does not really change the law at all and, in fact, it seems unlikely that it will have any real practical effect. The Directive is already implemented in the UK by The Equality Act 2010 (EqA 2010), which provides that a person has a disability for discrimination purposes if they have 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”.
Indeed, the Employment Appeal Tribunal drew similar conclusions to that of the CJEU in Walker v Sita Information Networking Computing Limited UKEAT/009/12 where it was held that obesity does not of itself render a claimant disabled, rather, it may contribute to any impairments within the scope of the EqA 2010 which the claimant may suffer from. As such, the recent CJEU decision is the right one, confirming the current position under English law.
In its judgment, the CJEU confirm that the aim of the Directive is to “lay down a general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in [Article 1 thereof], which include disability.” Therefore, employers must assess any disability discrimination issues (including those related to the physical, mental or psychological effects of obesity) on that basis. The effects of obesity may include a physical condition (e.g. diabetes, back or joint problems) or mental or psychological impairments (e.g. an employee suffering from depression arising from their obesity).
As before, employers should pay attention to the ability of their employees to perform their roles and consider any concerns an employee may have regarding such impairment seriously, not its cause. Alcoholism may not itself be a disability, any more than compulsive eating, but the impairments it causes (liver damage, depression and other physical conditions) may well be, and that was the case even before this decision.
Contrary to recent press reports, the CJEU’s decision should not be perceived as opening a can of worms to the detriment of employers. Employers need not start bulk-ordering larger office furniture and widening their doors just yet. What can be said, though, is that a healthier workforce may mean a lower likelihood of disability discrimination claims and, with that in mind, now could be a good time for employers to promote healthy living amongst its workforce.
Laura Tatum and Dan Peyton are employment lawyers at international law firm McGuireWoods.
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