Solicitor Abigail Halcarz of commercial law firm SGH Martineau explains: 'When his employment was terminated after 15 years of service, Mr Kaltoft was considered to be severely obese, with a BMI of 54. Mr Kaltoft claimed his dismissal was because of his obesity, which meant the Court of Justice of the European Union (ECJ) had to consider whether there is a general prohibition in EU law on all forms of discrimination, including obesity, or whether obesity should be classified as a disability within the scope of the ‘Equal Treatment Framework Directive’ (the Directive).'
The ECJ held that, generally, there is no law prohibiting discrimination on the grounds of obesity, but decided that in certain circumstances it could be considered a disability. The decision ensures every case will be considered on its own merits and national courts will decide whether a person’s obesity constitutes a disability.
Obesity in itself is insufficient to be a disability, but could satisfy the definition of disability under the 2010 Equality Act if the condition is severe enough. If severely obese employees suffer problems with mobility, endurance and mood, it could amount to disability and impact how employers manage their workforce.
Circumstances under which an obese employee may be considered to be disabled, include someone with type 2 diabetes who is regularly absent as a result of the condition, someone who suffers from depression as a result of their weight or someone whose obesity causes severe mobility issues (uses a wheelchair and finds it difficult to use public transport, for example).
The duties under the Equality Act in respect of people who are classed as ‘disabled’ will apply not only to disabled employees, but job applicants too. As such it is unlawful for an employer to
- discriminate directly by treating any individual less favourably than others because of disability, although positive discrimination in favour of a disabled individual is allowed
- discriminate by treating an individual unfavourably because of something arising from disability, without objective justification. For example, dismissing someone following 3 months' sick leave, despite knowing they have type 2 diabetes and the sick leave is disability related — the decision to dismiss is not based on the worker's disability, but because of something arising in consequence of their disability
- discriminate indirectly by applying a provision, criterion or practice that disadvantages any individual with a disability, without objective justification
- fail to comply with its duty to make reasonable adjustments where a disabled individual is placed at a substantial disadvantage
- subject an individual to harassment related to disability
- victimise an individual because they have made or intend to make a disability discrimination complaint
- ask job applicants pre-employment health questions other than for a prescribed reason.
Reducing risk
This case has highlighted the need for employers to review their equal opportunities and sickness absence policies, ensuring they cover all disability discrimination issues, including in some cases obesity. It is also prudent to review training for managers dealing with sickness absence and possible issues that may arise from obesity, to ensure they understand the current legal position and how it now applies in the workplace.
Employers must consider the ruling in this case and be more aware of the health consequences of obesity and how they can affect an employee’s performance. Importantly, in some cases, employers must make reasonable adjustments to an individual’s work or working arrangements to help counter the effects of disability, including obesity.
In conclusion, if an employer dismisses an employee because of any physical attribute, it is likely to be unfair and potentially discriminatory, unless it affects their ability to do their job and no reasonable adjustments can be made to alleviate that situation.