Obesity is a growing problem in modern society. For the first time, the European Court of Justice is considering issues concerning obesity-based discrimination.

Does the fact that a person who is obese mean they are, or could be 'disabled' for the purposes of the Equal Treatment Directive implemented in the UK under the Equality Act 2010? If their obesity impacts on their ability to carry out normal day-to-day activities, should they be protected from discrimination because they are overweight?

Today [17 July 2014], the Advocate General in the Danish reference of Kaltoft advises:

"Whilst there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right, morbid obesity may come within the meaning of 'disability' if it is of such a degree as to hinder full participation in professional life on an equal footing with other employees."

Obesity not a stand-alone protected characteristic

Advocate General Jääskinen points out that all EU legislative acts prohibiting discriminatory conduct are addressed to specific grounds of discrimination within definitive subject areas, rather than precluding any discriminatory treatment in a generalised manner. There is no general, stand-alone prohibition on discrimination on grounds of obesity in EU law.

Obesity potentially a 'disability'

As to the question of whether obesity can be classified as a 'disability' under the Equal Treatment Directive, the Advocate General suggests that if obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability.

In his opinion, 'mere' obesity - in the sense of World Health Organisation (WHO) class I or class II obesity - is insufficient to fulfil the criteria. Extreme, severe or morbid obesity (WHO class III obesity), which is a body mass index (BMI) of over 40, could suffice to create limitations, such as problems of mobility, endurance and mood, which amount to a 'disability' for the purposes of the Directive.

The Advocate General adds that the origin of the disability is irrelevant. The notion of disability is objective and does not depend on whether the applicant has contributed causally to the acquisition of his disability through 'self-inflicted' excessive energy intake. Otherwise physical disability resulting from reckless risk-taking in traffic or sports would be excluded from the meaning of disability.

Please note that although the concepts of disability under UK and EU law are similar, a notable difference is that the definition adopted by the European Court focuses on the effects on the condition on a person's ability to participate in 'professional life' on an equal basis with other people. The UK definition focuses on the effects on 'normal day-to-day activities', which includes most work-based activities, depending on how specialist they are.

Impact of the Advocate General opinion

While the judges of the European Court will take account of the Advocate General's opinion, it is not binding on the Court. The judges of the Court will now begin their deliberations in this case and deliver their binding judgment later in the year.

It is likely that the European Court will follow the advice of the Advocate General, which is in line with the conventional view under UK law, that obesity does not, of itself, render someone disabled.

Although obesity alone did not, of itself, render a person disabled, it might make it more likely that someone is 'disabled'. In particular it may make a tribunal more readily conclude that the individual does suffer from an impairment.

Instead, when considering the question of whether an individual is disabled, it is the impairment itself that should be considered rather than its cause. As the Employment Appeal Tribunal (EAT) held last year in the case of Walker v Sita Information Networking Computing Ltd, this is so even if the cause of the impairment is a condition which is excluded from the definition of disability. An example is liver disease caused by alcohol dependency; alcoholism is not a disability under discrimination law, but the liver disease as a result of the alcoholism would qualify as an impairment and so can give rise to a finding of disability.

Effect not cause is what needs to be considered.

However, the 'long-term' debate is likely to continue. The Equality and Human Rights Commission's "Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability" suggests that account should be taken of how far a person can reasonably be expected to modify their behaviour to prevent or reduce the effects of an impairment on their normal day-to-day activities.

Would it be possible for a morbidly obese individual to lose some weight within 12 months by modifying their behaviour to a level where the impairments would be alleviated? This will be an interesting and difficult evidential question to answer.

It will be several months before we have the final judgment of the European Court; most definitely one to watch!