Can obesity qualify as a disability for the purposes of identifying disability discrimination?
It is precisely this question that the Court of Justice of the European Union (CJEU) has been asked to consider in the case of Kaltoft v Billund Kommune. The case was referred to the CJEU by the Danish courts and was heard on 12 June 2014. The decision will be eagerly anticipated by employers and their lawyers throughout the EU.
If the CJEU were to decide that obesity does fall within the definition of a disability this will be binding across the EU. If the CJEU finds that the duty to prevent discrimination against employees who are obese applies beyond the public sector to all employers then employers will need to reconsider their treatment of such individuals.
The current position in UK law is that medical problems arising out of obesity could fall under the definition of a disability but obesity itself has not been accepted as a disability in its own right.
In this particular case, Karsten Kaltoft, who weighed over 25 stone, was employed as a childminder. Mr Kaltoft was dismissed by his employer, the council, after 15 years of service. The council stated that the reason for the dismissal was a decline in the number of children requiring its services. However, Mr Kaltoft has claimed that the real reason for his dismissal was that he was dismissed on the basis that he was unable to perform his duties as a result of his size, with the fact that he required the assistance of a colleague to tie up children’s shoe laces having been cited as one example of this by the council.
Mr Kaltoft has told the BBC that he was obese as a result of “bad habits” and that the council had tried to assist him by paying for him to attend a gym for three months.
With obesity on the rise both in the UK and Europe and the British Heart Foundation reporting that in England 68% of men and 58% of women are overweight or obese, the significance of the decision in this case and its impact on employers should not be underestimated. Will employers be obliged to consider reasonable adjustments such as making the office more easily accessible for obese employees or making larger seats available? Watch this space for the decision.