Could it be the case that people who are classed as obese are going to be covered by the terms of the Equality Act – in the same way as characteristics such as gender and race are protected? We look at a recent case where this issue was raised and discuss what the future implications might be.
One quarter of the adult population is now classed as obese and it is predicted that half of all adults could be obese by the middle of the century. Could it be the case that people who are obese are going to be covered by the terms of the Equality Act –in the same way as characteristics such as gender and race are protected? Also – does this make sense and what are the implications for employers? Well some of these issues were raised in a recent opinion given by the CJEU following a case that was referred to it from the Danish Courts.
The Advocate General (AG) expressed the preliminary opinion that obesity in itself is not a protected characteristic. However, the AG went on to say that obesity is capable of being a protected characteristic where a person is classified as morbidly obese.
The facts of the case
The facts are interesting. Mr Kaltoft was dismissed from his employment as a child minder with the Municipality of Billund. During his 15 years’ service, he had never weighed less than 25 stone (160 kg) and had a BMI of 54. His employer funded gym memberships and exercise classes to help him lose weight but attempts proved fruitless. Mr Kaltoft was eventually dismissed when his employer decided he could not carry out significant aspects of his role including being too overweight to tie a child’s shoe laces. Mr Kaltoft brought a disability discrimination claim against his employer which was referred by the Danish Court to the CJEU to consider a number of questions, including whether obesity could amount to a disability under the Equal Treatment Directive.
The AG concluded (unsurprisingly) that EU law does not include a general principle prohibiting employers from discriminating on grounds of obesity. However, the AG went on to say that severe obesity can be a disability for the purposes of the Equal Treatment Directive if it “hinders full and effective participation of the person concerned in professional life on an equal basis with other workers”. It is then for the national court to decide whether the person’s obesity amounts to a disability in their particular case.
The AG commented that “mere” obesity (defined by the World Health Organisation as someone with a BMI of 30 to 34.99) is insufficient to amount to a disability whereas severe, extreme or morbid obesity (someone with a BMI of over 40) may create problems with mobility, endurance and mood that amount to a disability. The AG didn’t decide whether or not Mr Kaltoft (with his BMI of 54) has a disability but the clear inference was that he probably does.
What does this mean for employers?
This development could impact on how you manage your workforce. Communication is therefore key. Clearly this is going to give rise to some difficult conversations. However if there are individuals in the workforce, perhaps drivers or those working in loading bays, then you may want to consider discussing with them any issues they have in performing their duties. Obviously this should be done in a sensitive and confidential manner but broaching the issue now could head off any future claims.
It could also be the case that If a person’s obesity is severe enough to qualify as a disability, the employer may face a discrimination claim if the employee is dismissed, subjected to a detriment, harassed, victimised or placed at an unfair disadvantage because of their weight. This could include comments about a person’s weight that they find offensive.
The CJEU is not bound to follow the AG’s decision (although it often does) and is likely to issue its judgment in the next four to six months. A further update will follow.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.