Does my bum look big in this? Then what adjustments are you going to make?…

Dr Mark Butler

The European Court’s judgment in Kaltoft was handed down on 18th December 2014, and unsurprisingly, sits broadly in line with the Opinion of Advocate General Jaaskinen, which was handed down on 17th July 2014.

The issue of whether obesity could be protected under the EU’s general principle of Equality was swiftly rejected, primarily on the basis that the EU has not been conferred competence to deal with this matter, and thus it is not covered under this principle. This left outstanding the question of whether obesity could be considered a disability under Framework Directive 2000/78/EC.

In line with the A-G Jaaskinen’s Opinion the Court has held that obesity could, in certain circumstances, be classified as a disability, so long as it satisfies the established test for disability, which requires ‘a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’ (this test being developed across numerous cases including HK Danmark, EU:C:2013:222, paragraphs 37 to 39; Z., C‑363/12, EU:C:2014:159, paragraph 76; and Glatzel, C‑356/12, EU:C:2014:350, paragraph 45). The focus in this case is clearly on an impairment which prevents, to some extent, full and effective participation in the workplace.

Although the headnote of the case is that obesity can be a disability, this is not going to be the end of the matter, as the Court did not define the circumstances in which the definition of disability was satisfied but instead left it to national courts to determine on a case by case basis. Unlike the Advocate General, which referred to morbid obesity or the World Health Organisation’s classification Body Mass Index III as the threshold, the Court provided no such indicative level, which introduces an element of uncertainty. Instead the European Court simply requires consideration of whether the obesity of the worker can be viewed as entailing ‘a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’. Although this approach is safe, in the sense of not precluding any level of obesity from potentially being a disability, this does introduce the uncertainty of not knowing when this test has been satisfied.

This appears to be a somewhat ambiguous judgment, which although appearing to find that obesity could be discrimination fails to provide the requisite clarity on what level of obesity can be or should be regarded a disability. Employers could be left in limbo by this judgment, having to carefully consider the position of all their workers who can be considered obese, rather than just the morbidly obese; in this respect the judgment is much wider and has greater implications than that suggested by the Advocate General’s Opinion. Clarification will be awaited from national courts; if the current UK position is maintained under the Walker v Sita case, then the focus will be on obesity which causes other physical and mental impairments, which appears to be in line with this decision given the Court’s referral to ‘reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity’ when considering obesity as a disability.’

Similar to the conclusions that I reached with regards the Advocate General’s Opinion, the impact of this decision is likely to be limited (see Butler, M. ‘Obesity: is it a disability?’ published in Tolley’s Employment Law Newsletter and Butler M., ‘ Obesity As A Disability: The Implications Or Non-Implications Of Kaltoft’, (2014)). However, this decision, unlike the A-G’s Opinion, due to its ambiguity, has scope for increasing potential litigation. At least with the A-G’s Opinion there was a measurable threshold, which could be considered, applied, and adjustments thus considered. The decision of the Court is not so employer friendly in this regard, and will require consideration on a case by case basis. It is unlikely that this decision will expand the scope of the protections already afforded to the obese in the UK, given the UK’s focus on consequences of obesity; however, it will have costs associated to having to monitor and consider individuals that are obese on a much wider scale.

Mark Butler (@m_butler1) is a Lecturer in Law at Lancaster University Law School, a fully qualified non-practising barrister, and the co-author of European Employment Laws.  His research interests are centred on UK employment law and EU Labour law, with a particular emphasis on employee rights.  He is currently conducting research in the area of discrimination, viewing the protections afforded to workers through comparative analysis.

You can find out more about Mark’s research at http://www.lancaster.ac.uk/fass/law/profiles/mark-butler

 

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