The case stems from Mr Karsten Kaltoft, a clinically-obese childminder who worked for a local council in Denmark. He was dismissed due to redundancy. He alleged that obesity was a factor and brought proceedings in his own country. The district court referred questions on obesity to the European Court of Justice for a preliminary ruling. The first three questions dealt with whether it was unlawful to discriminate on the grounds of obesity, whether any such right was directly applicable, and querying the appropriate burden of proof.
The ECJ held that obesity itself cannot be regarded as a ground for protection against discrimination, and therefore the second and third questions need not be answered. The fourth question related to whether obesity could be deemed to be a disability under an EU Directive. If so, how to determine if an obese person is protected against disability discrimination.
The ECJ held that in the event that ‘under given circumstances, 'obesity' 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", it could be a disability.
It is now a matter for employment tribunals in the UK to determine whether the conditions required for obesity to be a disability are met. Therefore, a worker with long-term obesity might be regarded as disabled.
Omer Simjee, an employment partner at Irwin Mitchell, said: "This is a significant ruling and although being 'fat' is not enough in itself to be considered disabled, it could if it restricts an individual’s ability to actively and fully engage in their work. That said, it would appear as though there does not need an underlying medical condition necessary. This is new and will in appropriate cases mean that obesity in its own right can be deemed to be a disability.
"With one in four adults in the UK being classed as obese, this represents a major headache for UK businesses. They will need to alive to the heightened risk of claims and there is a high likelihood that an employer could be under a duty to make ‘reasonable adjustments’ to accommodate overweight employees including a legal obligation to provide car park spaces close to the workplace entrance, provide special desks and chairs, or provide duties which involve reduced walking or travelling."
Employers should therefore remain alert to employee health and workplace obstacles, including to those who are obese.
If a worker is not performing well at work possible reasons may include disability. Employers must be careful. If an employee requested adjustments to their work or working environment the law will penalise employers who fail to be accommodating towards employees with a disability they ought reasonably to know about.
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