Obesity can amount to a disability

Last week we received the opinion of Advocate General Jaaskinen in the European Court in the case of the Danish childcare worker, Mr Kaltoft, against the municipality of Billeund. It has thrown up interesting questions for employers in relation to the issue of obesity.

Mr Kaltoft had, it seemed, successfully worked as a child-minder for 15 years. He weighed 1.72m tall and weighed 160kg (5’8″ tall and 25 stone). At one point he had been offered gastric surgery but it had failed for medical reasons. His employer had also paid for him to attend a gym for a one year period. His dismissal seems to have been for redundancy, but he was arguing that it was because of his obesity and that that obesity was disability discrimination.

The Advocate General’s opinion is that obesity can, in certain circumstances, amount to a disability. He looked at the World Health Authority (WHA) categorisation of obesity which breaks down obesity into three categories. The third category is ‘severe, extreme or morbid obesity’ meaning those with a Body Mass Index (BMI) of 40+. Mr Kaltoft’s BMI was 54. The reason behind the analysis is that in the cases of such a category of obesity the individual’s condition will be hindering their full participation in professional life. However, ‘mere obesity’ in the sense of the WHA Class 1 (meaning those with a BMI of over 30) would not hinder somebody’s ability to participate in professional life and will not amount to a disability for the purposes of European Law.

This fits with previous case law here in the UK which has been moving in this direction for some time. Immediately you can see it throwing up some interesting questions for employers: we find it challenging enough to talk to employees whose weight may be becoming a problem: this line of reasoning means employers will have to have discussions with employees about their weight versus height, or Body Mass Index.

It won’t mean that an employer would have to continue to employ somebody who is no longer capable of doing their job, but it will mean that the employer will have to go through a process of looking at whether any reasonable adjustments can be made to accommodate their obesity prior to reaching the conclusion that they cannot be maintained in post. This might mean employers having to think about changing furniture, for example providing different chairs for an obese worker. Given that obesity may affect mobility, we can see cases where an obese worker might require a car parking space nearer the building, or their desk to be sited nearer to the toilets, for example.

You can also predict that some employees may claim harassment on the grounds of their disability by reasons of their obesity. If there have been ‘fat jokes’ in the workplace then this may amount to harassment and you should certainly consider including discussion of this sort of behaviour in any training that you do in relation to bullying and harassment going forward.

The decision of the European Court on the issue won’t necessarily agree with the Advocate General’s opinion but it probably will.