The Court of Justice of the European Union (CJEU) has issued its Judgment this morning in the case of Kaltoft v Billund Kommune, a case referred to it by the Danish Courts.
Karsten Kaltoft, who weighed over 25 stone, was employed as a childminder. Mr Kaltoft was dismissed by his employer, a 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 claimed that the real reason for his dismissal was that he was unable to perform his duties as a result of his size, allegedly requiring the assistance of colleagues to tie children’s shoe laces, having been cited as one example.
Obesity as a disability
The CJEU has ruled that obesity can amount to a disability provided this hinders the full and effective participation of employees in professional life, on an equal basis with other workers. The Court has emphasised that there is no general principle in EU law that prohibits discrimination based on obesity in its own right.
The decision is binding on Member States including the UK and now means employers here need to give serious consideration to their treatment of obese employees and, in particular, their duty to make reasonable adjusments in order to accommodate their disadvantages. This is likely to have particular relevance in labour intensive roles, requiring full mobility of employees.
Until now, the position in UK law was that medical problems arising out of obesity could fall under the definition of a disability but obesity itself was not accepted as a disability in its own right. Employers were therefore free from associated duties and in particular the duty to make reasonable adjustments.
What might be required of employers?
Whilst obese employees will now also arguably be protected from direct and disability related discrimination, it is difficult to be exhaustive in terms of the sorts of ‘reasonable adjustments’ obese employees might expect to be made by their employers. Examples could include from larger seats and seating areas to adapted vehicles for those employed to drive and possibly varied shift patterns.
In addition to the fundamental legal obligations, there may also be employment relations headaches in the future, together with associated additional claims, as some employees may consider their obese colleagues enjoy preferential treatment. The Court has made it clear that the origin of an obesity amounting to a disability is not relevant, for example where caused by over eating or gluttony.
The Court did not define what specific level of BMI would be required in order to classify an obese person as ‘disabled’ ruling that decisions would need to be made on a case by case basis by employers. This leaves a degree of confusion for employers and employees despite the Judgment.
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