In the case of Kaltoft v Municipality of Billund heard in a Danish court, the Court of Justice of the European Union has ruled that an obese person may be disabled and protected by disability discrimination laws.
Kaltoft worked as a childminder for 15 years before being dismissed. During his employment, he was categorised as Class III obese (or severe, extreme or morbidly obese) under the World Health Organisation classification. He claimed he was dismissed because of his obesity and brought discrimination proceedings.
The court asked the ECJ whether discrimination on grounds of obesity is unlawful or alternatively whether obesity can be classified as a 'disability' under the Equal Treatment Framework Directive.
The ECJ agreed that whilst discrimination on grounds of obesity is not unlawful, obesity could be classed as a disability and protected by disability discrimination laws. Whether an obese person is disabled will depend whether their obesity results in a physical or mental impairment, which hinders their ability to participate in employment on an equal basis with other workers on a long-term basis. The fact that the person may have contributed to the onset of their disability and that it might be self-inflicted is irrelevant to the question of whether they are disabled.
The Advocate General gave his opinion and suggested that those classified as WHO Class III obese are likely to suffer limitations on their ability to participate in employment on an equal basis with other workers and therefore be disabled. The ECJ did not comment on this, but the key issue in each case will be whether the particular employee has a physical or mental impairment resulting in limitations on their ability to participate in employment on an equal basis with others. For many people, their obesity does not affect their work in any sense and they would not be classed as disabled.
Before deciding on whether to manage performance due to capability of an obese person, employers should take care whether there is a link between an employee's obesity and their performance, and assess whether they can be classified as disabled. It may be wise to get a medical assessment on the individual's ability to carry out day to day duties, and if necessary make any reasonable adjustments to their role, such as a reduction of working hours, or changes to their working environment.