CJEU: obesity can be disability if "full and effective" workplace participation limited

In response to a referral from the Danish courts, the Court of Justice of the European Union (CJEU) said that nothing in the directive or in EU law more generally prevented an employer from discriminating against a worker on the grounds of obesity itself. However, the concept of "disability" in the directive could cover any limitation from "long-term physical, mental or psychological impairments" that prevented that person from participating in work on "an equal basis with other workers", it said.

It would be up to the national court to decide whether obesity amounted to a disability in the particular circumstances of this or any other case, the CJEU said. However, this would likely be the case in circumstances where the worker's obesity caused reduced mobility or other medical conditions, it said. If an obese worker was disabled, then the employer would have to make "reasonable accommodation" to allow that person to "have access to, participate in or advance in employment", the CJEU said.

Employment law expert Sue Gilchrist of Pinsent Masons, the law firm behind Out-Law.com, said that while the ruling did not change the legal position in the UK, employers should consider whether their obese employees could be protected under provisions preventing discrimination on the grounds of disability.

"The UK courts have previously ruled that obesity itself does not amount to a disability," she said. "However, obesity could mean that an employee would have other impairments which could amount to a disability under the Equality Act, such as diabetes or depression."

"Following that previous guidance, and this new decision of the CJEU, employers should consider whether, in the particular circumstances applying to individual employees, the employee might be disabled. If obese employees are protected by disability discrimination laws, employers will be required not to discriminate and also to consider reasonable adjustments for them as they do for other disabled employees," she said.

Pensions expert Carolyn Saunders of Pinsent Masons said that the ruling could also impact on "the many pension schemes that allow early retirement in cases of ill health".

"Ill health for these purposes arises if a person can no longer carry on his occupation - so unless an employer makes reasonable adjustments to allow someone to carry on his occupation, the employee might be able to claim an early pension under the employer's scheme," she said.

The case had been brought by the Fag og Arbejde (FOA), a Danish workers' union, on behalf of Karsten Kaltoft, a former childminder. Kaltoft had been employed by a local authority for 15 years, and took care of children in his home. Throughout his employment, Kaltoft was obese according to the definition set by the World Health Organisation (WHO).

In November 2010, Kaltoft's employment contract was terminated. Although this was motivated by a decrease in the number of children needing taken care of, the local authority did not give a reason why Kaltoft was the one chosen for his dismissal. However, his obesity was mentioned during a dismissal meeting. Both FOA and Kaltoft alleged that he had been unlawfully discriminated against on the grounds of his obesity, which the authority denied.

The Employment Equality Directive creates a general framework preventing discrimination in the workplace on the grounds of religion or belief, disability, age or sexual orientation. It requires employers to take "appropriate measures" to ensure that those with disabilities are treated equally at work unless these measures would "impose a disproportionate burden on the employer".

The CJEU has ruled previously that the protected grounds listed in the directive should not be "extended by analogy". For this reason, it said that obesity could not be regarded as an additional ground against which discrimination was prohibited by the directive. However, it could be classed as a 'disability' if it prevented or limited the worker's participation in the workplace on the same basis as other employees.

"It would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability," the CJEU said. "The concept of 'disability' within the meaning of [the directive] does not depend on the extent to which the person may or may not have contributed to the onset of his disability."

"It should be noted that obesity does not in itself constitute a 'disability' within the meaning of [the directive] on the ground that, by its nature, it does not necessarily entail the existence of a limitation … However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of 'disability'," it said.

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