The Advocate General's opinion in a recent Danish case may mean that severely or morbidly obese workers could be disabled under discrimination law. This may have a big impact on retailers.

The Law

Whether obesity is a disability under the Equality Act 2010 (the "Act is important because if an individual has a disability under the Act, their employer is legally obliged to make reasonable adjustments to accommodate this. Remember that the requirement is for reasonable adjustments, which can be interpreted as just enough to overcome a hurdle which a disabled person faces in comparison to an able-bodied person. This raises the interesting question of what would be considered reasonable. For example, if obesity is found to be a disability, would retailers be expected to provide obese employees with customised larger uniforms? It will depend on the size and resources of the retailer so that if you are a smaller organisation you are more likely to be able to successfully argue that it is not viable to do this. 

Facts of the case

In Kaltoft v Municipality of Billund1, Mr Kaltoft was a child-minder for a Danish local authority until he was dismissed without an explanation in late 2010 after 15 years of service. Mr Kaltoft, who is severely obese claimed that he was dismissed because of his weight and brought discrimination proceedings in the Danish courts.

The Advocate General's opinion reaffirms that obesity is not a protected characteristic in its own right. However severe or morbid obesity, i.e. someone with a body mass index (BMI) of over 40, will "most probably" amount to a disability due to the limitations it creates such as on mobility and mood. He went on to state that whether the obesity is self-inflicted is not relevant.

Interestingly, the Advocate General's opinion found that morbid obesity itself can amount to a disability. However he also stated that a morbidly obese person would also need to show the mental and physical implications of the condition rather than simply stating that he is classified as such.

This opinion is not binding on the ECJ which will make a binding decision (perhaps a lot) later in the year, however it is likely to follow the opinion.

Practical tips

  • Reasonable adjustments – Consider these where extreme obesity leads to an impairment on how an employee carries out their job. For example, consider whether someone working on the shop floor can have a stool to occasionally rest on;
  • Be proactive – for example in terms of harassment and bullying policies. You should explicitly state that banter such as 'fat jokes' are not acceptable. It is important to nip this kind of behaviour in the bud now or you could face harassment claims for employees' misguided comments;
  • Think before you act – if obesity is found to be a disability, this means that retailers cannot simply performance manage and dismiss obese employees (just as with employees with other disabilities) if performance is adversely affected by the obesity. Also, in any event do not assume that an obese employee is not disabled but do further research into their condition and whether there are any other medical issues related to the obesity e.g. diabetes; and
  • Encourage active lifestyles – for example you could offer the "cycle to work" scheme and/or corporate discounts on gym membership so that employees are encouraged to keep fit. However remember not to be pushy about this; it should always be a choice.

Footnote

1. FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund, Case C?354/13

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.