Legal update – Is it unlawful for employers to discriminate on the grounds of obesity?

The recent ECJ ruling in the Danish case of Kaltoft v Municipality of Billund held that there is no general principle of EU law prohibiting discrimination on the grounds of obesity. This is consistent with the Advocate General’s earlier opinion (for a summary of that opinion, please visit my blog, Obestity based discrimination – a growing problem. 

However, although no automatic free-standing protection is granted to individuals who are classified as obese, those individuals may qualify for protection under the Equality Act 2010, if their condition falls within the definition of disability for the purposes of the act. Unlike the Advocate General’s opinion, the ECJ did not suggest that only “severe” or “morbid” obesity might amount to a disability, but found that each case will depend on its facts.

European case law provides that an individual will be disabled if they suffer from a condition which amounts to a long-term physical, mental or psychological impairment which, in interaction with various barriers, may hinder the full and effective participation of the person in professional life on an equal basis with other workers. Whether or not obese employees qualify for that protection will therefore depend on the extent of the condition and the particular circumstances of each case. For example, if an employee is unable to perform daily tasks at work due to his/her size then the employer may have to consider making reasonable adjustments in the same way it would for other disabled employees. Similarly, if an obese employee is disabled for the purposes of the Equality Act then the employer should ensure it does not subject that employee to any less favourable treatment or detriment on the basis of his/her size.