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‘Mere’ obesity is unlikely to be a disability, but ‘severe’ obesity may well be…

As discussed in our previous blog, the UK Employment Appeal Tribunal has held that whilst obesity is not an impairment in itself for disability discrimination purposes, obesity might make it more likely that a claimant has impairments which render them disabled.

The Advocate General of the European Court of Justice (ECJ) has now issued his opinion in the case of a Danish childminder who claims he was dismissed from his employment on account of his obesity. This opinion is not binding on the ECJ however it tends to follow the Advocate General in the majority of cases.

Is discrimination on grounds of obesity per se prohibited?

The Advocate General’s view is that there is no general prohibition on all potential forms of discrimination – rather, it is limited to the specified grounds (such as race, sex, disability etc).  Discrimination on grounds of obesity per se is not therefore unlawful. This also implies that discrimination on other potential grounds, such as appearance, size, or social factors such as class or status, is not unlawful.

Is obesity a disability, and therefore covered by disability discrimination law?

The World Health Organisation (WHO) ranks obesity into three classes by reference to body mass index (BMI):

  • Class I: BMI 30 – 34.99
  • Class II: BMI 35 – 39.99
  • Class III: BMI 40 or over – sometimes referred to as severe, extreme or morbid obesity.

The Advocate General considers that:

  • Obesity of a certain severity may amount to a disability, if it hinders full participation in professional life on an equal footing with other employees due to the physical and / or psychological limitations it entails.
  • ‘Mere’ obesity i.e. Class I obesity is insufficient to fulfil the criteria on disability.
  • Most probably only Class III obesity will create limitations, such as problems of mobility, endurance and mood, that amount to a disability.
  • The origin of a disability is irrelevant, so it does not matter whether obesity is ‘self-inflicted’; due to a psychological or physical problem; or a side-effect of medication.
  • Before it will be classed as a disability, an individual’s obesity will need to meet the definition of a disability, which in the UK is that a person has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

It remains to be seen whether the ECJ adopts the Advocate General’s opinion, but we will keep you posted.

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