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22 October 2014

Obese workers and disability rights

Following a preliminary ruling by the Advocate General (AG) of the Court of Justice of the European Union (CJEU), severe obesity could be considered a disability under EU law if the opinion is upheld by the CJEU. 

The issue arose in a Danish case (Karsten Kaltoft v the Municipality of Billund) concerning a childminder who throughout his employment with the local council had weighed more than 160kg and who in 2007 had a body mass index (BMI) of 54, which classified him as morbidly obese.

The man claimed that his employment with the local council had been terminated on account of his obesity and this amounted to unlawful discrimination on the grounds of disability.

The AG found that although EU law does not include a general principle prohibiting employers from discriminating on grounds of obesity, so it is not a protected characteristic per se, obesity can be a disability covered by the protection provided in the EU Equal Treatment Directive, if it hinders 'full and effective participation of the person concerned in professional life on an equal basis with other workers'.

In the AG's opinion, only severe or morbid obesity (i.e. where a person has a BMI in excess of 40) is likely to create limitations, such as problems in mobility, endurance and mood, that would constitute a disability for the purposes of the Directive.

The AG went on to say that the notion of disability under the Directive is objective, so whether or not the condition is 'self-inflicted' is irrelevant.

An opinion of the AG is not binding on the CJEU but it is followed in a majority of cases. If the ruling is upheld, employers could be required to make reasonable adjustments to accommodate the needs of severely overweight members of staff. Special requirements could include reserved parking spaces near to the entrance to the premises, larger than usual company cars, office furniture rated for heavier people and easier access to equipment and office facilities.

For more information call 01753 279029 or email employmentlaw@bpcollins.co.uk

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