The Advocate General (A-G) has today given his opinion that morbid obesity may amount to a disability for the purposes of the Equal Treatment in Employment Directive.
The A-G gave this opinion on the case of FOA, the union acting on behalf of, Karsten Kaltoft v Kommunernes Landsforening (KL) acting on behalf of Municipality of Billund. The case concerned a Danish man who claimed that his dismissal was rooted in unlawful discrimination against him due to his weight. The Danish courts asked the Court of Justice whether EU law includes a self-standing prohibition on discrimination on the grounds of obesity or whether alternatively obesity can be classified as a disability and therefore fall within the scope of the Equal Treatment in Employment Directive.
The A-G pointed out that there is no explicit reference to obesity as a prohibited ground of discrimination in any EU law, and no provision for precluding discriminatory treatment generally and therefore there is no general stand-alone prohibition on discrimination on grounds of obesity in EU law. However when looking at the Equal Treatment Directive he opined that it was possible that where obesity reached such a degree that it plainly hindered participation in professional life then this could be a disability for the purposes of the Directive. He stated that in his opinion this was only likely to apply to extreme, severe or morbid obesity, that is to say a BMI of over 40 which could suffice to create limitations such as problems of mobility, endurance and mood.
The A-G went on to say that disability results from interaction between persons with impairments and the attitudinal and environmental barriers that hinder their full and effective participation in the workplace.
This opinion differs slightly from the latest UK decision on obesity. In Walker v Sita Information Networking Computing Ltd the EAT found that someone is not disabled because they are obese but it might make it more likely that they are because of conditions that arise out of their obesity.
Although the present case states that obesity may be a disability in itself, in practice it takes us no further than the Walker case. However, the A-G's opinion that even if a condition does not affect the capacity of that person to carry out the specific work in question, it can still be a hindrance to full and effective participation on equal terms with others, does appear to suggest that the negative perception of the obese person by others could amount to him being disabled even if he has no impairments.
The A-G's opinion is not binding on the Court of Justice so although it would be unusual, they may not agree. Their judgment will follow in due course.
Click here to read the press release, or here for the full text of the opinion.