The Treatment of Obesity in an Employment Context
You may remember in the news back in December a preliminary ruling on how obesity can be a disability, just as we were all devouring another mince pie followed by the never-ending stilton. Now with Dry-January over and done with, I thought we might provide a recap of this preliminary ruling of the European Court of Justice in the case of Fag og Arbejde (FOA) v Kommunernes Landsforening (KL): C-354/13  All ER.
What is the background to this decision?
The Employment Equality Directive establishes a general framework for equal treatment in employment and is binding on all member states including the UK. It covers matters such as sexual orientation, religion and disability, but does not specifically include obesity. Case law has established that ‘disability’ means limitations from long-term physical, mental or psychological impairments. The requirement of equal treatment means that both direct and indirect discrimination is prohibited.
The facts of the case concerned Mr Kaltoft who worked for the state as a child minder for 15 years and who was dismissed on the grounds of redundancy. Mr Kaltoft, supposedly weighed 25 stone and satisfied the World Health Organisation definition of obesity. He argued that his selection for redundancy was due to his weight.
How did the court approach this case?
The CJEU stated that the general principle of non-discrimination was a fundamental right integral to the general principles of EU law but that no treaty prohibited discrimination on the grounds of obesity per se. That meant that obesity was not a ‘protected characteristic’.
Nevertheless, the CJEU went on to say that the definition of ‘disability’ included a long-term physical, mental or psychological impairment which may hinder an individual’s full and effective participation in working life on an equal basis with others. Therefore, if a person’s obesity is such so as to place limitations on their participation at work, it may amount to a disability.
- that the employee’s own conduct may have contributed to the onset of the disability was irrelevant, and
- although an employer may have made adjustments to allow participation at work this did not extinguish any disability – if the only reason an employee was able to participate fully at work was due to adaptations made by the employer, the employee could still be regarded as disabled.
The case was then referred back to the Danish court to decide if Mr Kaltoft’s obesity fell within the definition of disability in light of the above.
What is the significance of this decision?
The decision is binding on UK courts and confirms that severe or morbid obesity may be regarded as a disabilty. However, the case law makes clear that being overweight does not automatically mean that the individual is disabled. Each individual employee will need to be assessed on a case-by-case basis.
What are the implications of this decision for UK employers and employees?
The ruling means obesity-related issues must be treated in the same way as any other disability if that obesity results in an impairment which affects the way a member of staff is able to do their job. Organisations will be expected to make ‘reasonable’ adjustments to accommodate staff. This may mean providing parking closer to the office where an employee has poor mobility, or permitting flexible working hours if an employee has difficulties travelling to work on crowded public transport. The decision also has implications beyond employment and extends to the supply of services.