You won’t be judged by your BMI

The European Court of Justice has recently given judgment in the case of Karsten Kaltoft v Billund Komunee which looked at whether or not dismissing someone because they are obese (or for reasons relating thereto) is, in itself, discriminatory and/or whether or not obesity amounts to a disability and as such is covered by the protections against disability discrimination.

Mr Kaltoft was a Danish child-minder weighing over 25 stone with a BMI of 54. When Mr Kaltoft was dismissed for redundancy, he alleged that the fact that he was obese was a factor in his selection for redundancy and that this amounted to discrimination.

The question of whether or not obesity in itself was a protected characteristic which prevented discrimination on the grounds that someone was obese, in the same way that sex or race are protected characteristics, was rejected by the European Court of Justice.

What was interesting however is what The European Court of Justice (ECJ) said about whether or not obesity was a disability and as such covered by the protections afforded to disabled workers.

In the UK, protection against disability discrimination (obviously) requires in the first instance that the relevant worker is in fact disabled. The statutory test used in the UK to determine if someone has a disability, is whether or not they have a physical or mental impairment which has a substantial adverse effect on the individual’s day to day activities, which lasts or is expected to last for 12 months or more. Some conditions however are deemed to be disabilities such as those diagnosed with cancer or HIV.

The ECJ said that obesity is not ‘deemed’ to be a disability but it was accepted that those who are obese may satisfy the statutory test of disability because of conditions that arise as a result of obesity such as diabetes or reduced mobility. This echoes the thinking of our own Employment Appeal Tribunal (EAT) and is one step away from the Advocate General’s opinion which seemed to be leaning towards a deeming provision for anyone with a BMI over 40.

It is anticipated that the real impact of this decision will be the fact that a light has been shone on the issue of reduced mobility for obese employees and the fact that this may be severe enough to enable them to assert that they are suffering from a disability which then engages the employers duty to make reasonable adjustments in the workplace.

Lift companies should prepare for an increase in enquiries.

If you would like further information on this topic or any other Employment or Immigration issue please contact the Edwin Coe Employment and Immigration Team.

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