Is obesity a disability?

This question has recently been discussed in the case of Kaltoft v Municipality of Billund. The Advocate General (AG) has given the opinion that obesity may amount to a disability, but only if it is ‘severe’.

Legal background

A person is considered to have a disability if he or she has a physical or mental impairment and it has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

Facts

In the Kaltoft case the claimant was employed as a child-minder. The claimant had a Body Mass Index of 54. During his employment his weight never dropped below this. According to the World Health Organisation (WHO), someone with a BMI of 40 or more is classified as severely or morbidly obese.

Following a re-organisation due to a decline in the number of children, Kaltoft was dismissed. His employer did not give a reason as to why he was selected for dismissal and consequently Kaltoft complained he had been discriminated against because of his obesity.

Advocate General Opinion

The AG has said that where obesity has reached such a level that it hinders full participation in professional life, on equal footing with other employees, it can be considered to be a disability. The obesity would have to be severe enough to have an impact on factors such as mobility, endurance or mood. Someone falling below a BMI of 40 would not be regarded as disabled just because of their obesity.

The AG also commented that the reasons for an employee's obesity are irrelevant to the question of whether that person is disabled or not, as this is an objective assessment and does not depend on whether the impairment could be said to be "self-inflicted".

What does this mean for employers?

The EU’s top court is now considering this point which could oblige employers to treat obesity as a disability. A Judgment is expected within the next few months.

However, in preparation, employers should make changes to their working practices. Employers should look to care for their employee’s health and lifestyle, promoting smarter food choices and subsidise gym memberships.

This Judgment will raise difficult questions for an employer when trying to establish if an employee is disabled and whether the duty to make reasonable adjustments is necessary. Such adjustments might include providing larger seats and desks, providing special parking spaces and less physical duties.