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Should obesity be considered a disability under discrimination law?

The European Court of Justice (ECJ) is currently deciding on an employment case which could have far-reaching consequences for the operation of discrimination law.

Background

The case of Karsten Kaltoft v Billund Kommune was referred by the Danish courts, and concerns a child-minder who was dismissed from his post after becoming too obese to carry out many of his duties. The claimant argued that his dismissal was an act of direct discrimination, leading the Danish courts to request a decision on whether obesity should be classified as a disability under EU law. The case was heard on 12 June.

Implications

The question of obesity as a disability was previously considered by a UK tribunal in the case of Walker v Sita [2013] UKEAT 0097_12_0802. Here it was held that, while not a disability in itself under the Equality Act 2010, it was possible for an obese employee to be classified as disabled by virtue of the effects of obesity, such as asthma, knee problems and depression.

If the ECJ rules in favour of Kaltoft and finds that obesity is a disability in its own right, the qualification given in the Sita decision will be removed. With 64% of adults in Britain said to be overweight or obese, this will mean a significant increase in the number of people potentially classified as disabled in the UK – though in order to qualify for protection under the 2010 Act, even employees who are classed as obese will need to show that their condition has a substantial, long-term and adverse effect on their ability to carry out everyday tasks.

The 2010 Act places an obligation on employers to make reasonable adjustments for disabled employees in the workplace, wherever they can show a substantial disadvantage compared to colleagues who are not disabled. For employers, therefore, a ruling accepting obesity as a disability could mean a widespread re-assessment of work environments and practices, and a potential rise in discrimination claims if the required adjustments are not made.

The ECJ is expected to give its decision in the coming weeks. Watch this space.

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