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Obesity: a weighty problem for employers?

One quarter of the UK adult population is now obese and it is predicted that half of all adults could be obese by the middle of the century.[0] With this in mind, should obesity be regarded as a disability under the Equality Act 2010 alongside other protected characteristics such as gender, age, race and religion, and if so, how concerned should employers be?

Written by Keith Martin, 3rd Year LLB and sub-editor of the Employment Law section of the review


In a Danish case to be considered by the Court of Justice of the European Union later this year, Kaltoft v the Municipality of Billund, the Kolding City Court referred four questions for a preliminary ruling. These questions asked whether a prohibition against discrimination due to obesity exists in EU law and whether obesity is covered by the concept of disability under the Equal Treatment Directive.[1]


Mr Kaltoft was dismissed from his job as a child minder with the Municipality of Billund after fifteen years’ service. During this time, he had never weighed less than 25 stone (160kg) and had a BMI of 54. His employer funded gym memberships and exercise classes to help him lose weight but these attempts proved futile. He was eventually dismissed when his employer came to realise that he could no longer carry out significant aspects of his role, such as tying a child’s shoelaces. Kaltoft brought a disability discrimination claim against his employer which was referred by the court in Kolding to the CJEU.[2]


Niilo Jaaskinen, an advocate general who advises the court before the judges deliberate and rule, found that EU law did not prohibit discrimination specifically on grounds of obesity, but concluded 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.[3] The advocate general commented 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 any particular case. The advocate general’s opinion is not binding on the Court of Justice, but it is almost always followed by the judges, whose rulings are binding across the European Union.


The advocate general also threw out the notion that a self-inflicted disability could be any less worthy of protection, saying: “The origin of the disability is irrelevant. [It] does not depend on whether the applicant has contributed causally to the acquisition of his disability through ‘self-inflicted’ excessive energy intake.” According to Jaaskinen, the concept of disability must, under any circumstance, be understood objectively and unaffected by whether the disability is ‘self-inflicted’ due to excessive calorie intake or whether it is caused by metabolic problems.[4] Mr Kaltoft told the BBC that his obesity was the result of “bad habits” and that the council had tried to assist him by paying for him to attend a gym for three months.[5] Under the Equality Act 2010, an impairment will only amount to a disability if it is ‘long-term’ (expected to last for more than 12 months) and there is an argument that, with appropriate dietary and exercise measures, obesity in many cases could be resolved within 12 months.


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 detriment, harassed, victimised or placed at an unfair disadvantage because of their weight. In addition, employers are under a duty to make reasonable adjustments in order to counter the effects of a disability. This could include, for example, creating reserved car parking for obese staff, adjusting office furniture, subsidising gym memberships or reducing duties that involve standing or walking.


Employers in some sectors may face particular challenges and wish to rely on the exception that a particular weight or appearance is an occupational requirement. For example, where there are weight restrictions and limited space on board an aircraft, an employer recruiting a flight attendant is likely to require somebody who is not morbidly obese for the job. Others organisations may wish to employ staff who fit their corporate image or the nature of their business, such as premium fashion retailers.


Several cases in other jurisdictions have resulted in dismissed workers winning claims that they were discriminated against for being obese. In one case in the United States, a Texan forklift truck operator grew to 48 stone (305kg), becoming too fat for the seatbelt on his truck. He asked his bosses at BAE Systems for an extender but instead the company sacked him. He received $55,000 (£32,800) in compensation for losing his job.[6]


Employers would be well advised to take great care when recruiting, disciplining or dismissing employees who may be morbidly obese and should avoid making stereotypical assumptions about their capabilities. Employers should consider what reasonable adjustments can be made for their condition to avoid a potential discrimination claim. Linklaters’ employment partner, Nicola Rabson said: "This decision shifts the burden of keeping those who are severely obese in the workforce to employers, who must make adjustments to accommodate any special requirements arising from a person's disability. Obesity, particularly severe obesity, can be a sensitive subject, so employers will have to tread carefully and not make assumptions about the needs of an obese worker."


For the moment, UK employers need to be aware that this issue is rapidly gaining profile. It will undoubtedly be on the radar of trade union representatives across the country, and indeed Europe. Once the full judgment of the Court of Justice is issued, claims of disability discrimination based on an employee’s obesity may follow. The ruling is expected early next year.

[0] Marie Ng et al., ‘Global, regional, and national prevalence of overweight and obesity in children and adults during 1980—2013: a systematic analysis for the Global Burden of Disease Study’ 2013 The Lancet, Volume 384, Issue 9945, 766 – 781. 

[1] International Law Office, ‘Advocate general: obesity may constitute a disability’, 24 September 2014, available at: Last accessed: 16 October 2014.

[2] Employment Law On Demand, ‘Obesity – is it a weighty problem for employers?’, July 2014, available at: Last accessed: 14 October 2014.

[3] The Guardian, ‘Severe obesity is a disability, European court adviser rules’, 17 July 2014, available at: Last accessed: 15 October 2014.

[4] The Guardian, ‘Severe obesity is a disability, European court adviser rules’.

[5] BBC News, ‘EU's top court may define obesity as a disability’, 12 June 2014, available at: Last accessed: 15 October 2014.

[6] The Guardian, ‘Severe obesity is a disability, European court adviser rules’.

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