Obesity can be a disability (but is not a protected characteristic of itself)

18 December 2014

The case of FOA (Kaltoft) v Billund (C-354/13) is the first time the Court of Justice of the European Union (CJEU) has considered issues concerning obesity-based discrimination. More specifically, it has looked at whether obesity can be classed as a "disability" under the Equal Treatment Directive.

Back in July, the Advocate General who advises the CJEU, concluded that obesity, in isolation, is not automatically to be regarded as a disability. However, morbid obesity may come within the meaning of 'disability' if it is to such a degree as to hinder full participation in professional life on an equal footing with other workers.

We now have the judgment of the full court.

The headlines

  • There is no general principle in EU law of non-discrimination on the grounds of obesity.
  • But obesity can amount to a disability if it entails a limitation which results from physical, mental or psychological impairments which prevent the full and effective participation of that person in "professional life" on an equal basis with other workers.
  • It is irrelevant that an obese individual may have contributed to the onset of his disability.
  • If an obese person is disabled, the duty to make reasonable adjustments will apply.

This decision is in line with the conventional view under UK law that being obese does not, of itself, render someone disabled.

Impairments arising out of the obesity however could amount to a disability. So while the fact of being obese does not in itself amount to a disability, being obese may make it more likely that an individual has an impairment, such as restricted mobility, which a Tribunal could hold to be a disability.

The CJEU points out that the purpose of the Equal Treatment Directive is to implement equal treatment. It states that it would "run counter to the very aim of the directive if its application was dependent on the origin of the disability", and confirms that the concept of "disability" does not depend on the extent the individual may or may not have contributed to his disability. This means that when looking at the question of disability, the tribunal should consider the impairment itself (e.g. reduced mobility) rather than its cause (e.g. overeating).

Impact on employers

  • Just because someone is obese does not mean that they are automatically disabled. However, employers should consider on a case-by-case basis whether it is likely that the extent of their obesity means that they have an impairment that falls under the definition of disability under the Equality Act (i.e. a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities).
  • If you have an obese employee that you think may be disabled, consider whether you need to make any adjustments to the workplace in line with the duty to make reasonable adjustments.
  • Guidance on the Equality Act 2010 suggests that consideration should be given to how far a person can reasonably be expected to modify their behaviour in relation to impairments. So, an obese employee could be expected to take steps to lose weight. Employers should not however assume that they can simply ask the individual to modify their behaviour, for example, in terms of their eating/exercise habits. You would need to be fully up to speed with all the circumstances and also be aware that so asking could in itself be an act of discrimination (e.g. harassment) dependent on the manner of the question/reasoning behind it.
  • You can, and should, however consider what you can do to mitigate risk from a wider angle. For example can you establish wellbeing initiatives that encourage, and help, the workforce as a whole to embrace a healthier lifestyle?
  • Be aware of the risks of dealing with stereotypes/making assumptions based on appearance, For example, assuming the causes behind obesity are overeating, or that because someone is overweight, they suffer from a wider health condition. Approach any conversations around obesity with caution, as it is likely to be a sensitive area for the employee.

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