Kaltoft v Kommunernes Landsforening

In this case the Claimant claimed that the Municipality of Billund in Denmark terminated his employment as a childminder because of his obesity and that this amounted to unlawful discrimination.

The Claimant was 1.72 metres tall and weighed over 160 kilograms, giving him a BMI of 54. This would be classified as class III obesity, or ‘severe, extreme or morbid obesity’, under the World Health Organisation’s (“WHO”) classification.

The Claimant brought a claim before a Danish court, which made a reference to the European Court of Justice (“ECJ”). It asked whether obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market, and whether obesity is a form of ‘disability’.

The ECJ rejected the argument that there is any fundamental principle of EU law that prohibits discrimination on the ground of obesity per se. However, obesity may meet the definition of ‘disability’ if it is ‘severe’. The condition must have reached such a degree that it plainly hinders full participation in professional life. The ECJ stated that ‘most probably’ only the WHO class III obesity, also known as ‘severe, extreme or morbid obesity’ with a BMI over 40, will create such problems in mobility, endurance and mood as to amount to a disability.

This case is a warning to employers of the need to be mindful that employees may be disabled for the purposes of the Equality Act 2010 if they are obese.  As the number of obese people continues to rise in the UK employers need to ensure that staff are not treated less favorably than others because of their obesity. Employers may need to make reasonable adjustments to accommodate staff who are obese. Even if someone does not fall within the definition of class III obesity employers should be mindful of the possibility that staff who are significantly overweight may have other health problems (which could be caused by their weight) which in their own right constitute health conditions that could amount to a disability, for example diabetes.  Employers are well advised to ensure that managers dealing with overweight employees are mindful of the legal protection which they may have.