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EU Decision on Workplace Obesity

Following an opinion from Advocate General (AG) of the European Court of Justice (ECJ) Niilo Jaaskinen in Kaltoft v The Municipality of Bilund the concept of obesity as a disability is a hot topic.

Mr Kaltoft was employed as a child-minder by the Danish council. In his 15 years of employment Mr Kaltoft never weighed less than 25 stone (160kg). Following his dismissal he claimed that he was dismissed because of his obesity, which should have been treated as a disability, and so therefore he was discriminated against on grounds of disability.

Under UK law, the legal definition of a disability is a “mental or physical impairment, which has a long-term (12+ months), and substantial adverse affect on a person’s ability to carry out normal day to day activities”.

Traditionally those with a BMI of 30 or above were considered obese, but when examining obesity in the workplace the diagnosis is becoming more results driven and considering the effects of the condition. A person who is obese will not be classed as disabled unless their weight “has reached such a degree that it plainly hinders participation in professional life”.

The key point from the AG’s opinion is that obesity is not a disability itself, but its  symptoms have the same impacts as many recognised disabilities and it is the effect of those problems, not the cause, which must be considered. 

Ultimately, if a person’s ability to work or their work life is clearly and adversely affected by their obesity they may be considered disabled.

The law is not yet set at this point however as the AG’s comments are only an opinion.  A final decision will not be issued in the case for another 4-6 months, though it is common for the ECJ to follow the AG’s opinion. If the ECJ rules that obesity affecting workplace and daily life is a disability, employers will be required to consider what, if any, reasonable adjustments must be made for obese employees. Examples could include larger desks and chairs, lighter duties or improved car parking, and all at the employer’s expense.

This is likely to be an area of development and change for both employers and employees over the coming months as we await the ECJ’s decision.

For more information please contact Martin Sinclair or Nicola Gray or call 01224 632 464.

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