This post was contributed by Catrina Smith, Partner, Norton Rose Fulbright LLP (London)

The Advocate General’s opinion in a recent European case has raised speculation that severe obesity could be considered a protected characteristic under the UK Equality Act 2010 and as such an employee could claim disability discrimination on the grounds of their obesity.

The case involved a childminder in Denmark who was dismissed in November 2010 after 15 years of service. During his employment the employee weighed 160kg or 25 stone and was therefore severely obese according to the World Health Organisation (WHO) rankings. One of the results of his obesity was that he was unable to bend down to tie the children’s shoelaces. The employee claimed he had been dismissed because of his obesity and brought discrimination proceedings in Denmark. The court was asked to consider whether there is a free-standing prohibition on discrimination on the grounds of obesity under EU law and whether obesity can be classified as a disability under the Equal Treatment Framework Directive (the Framework Directive).

The Advocate General concluded that there is no free-standing prohibition against discrimination on grounds of obesity under EU law. However, in relation to the second question, he noted that to be a disability under the Framework Directive, a condition must represent a limitation that hinders a person’s full and effective participation in professional life on an equal basis with other workers. Obesity itself may not therefore be a disability, especially if not severe, but it will satisfy the definition if the condition creates limitations, such as problems in mobility, endurance and mood that amount to a disability. Whether or not it amounts to a disability will not be dependent on the origin of the disability or whether the obesity was self-inflicted.

An Advocate General’s opinion is only advisory in nature and, as a result, is not binding but is often an early indication of the possible outcome of a case. The Court of Justice of the European Union (CJEU) will give its judgment in due course and may decide to disagree with some or all of the Advocate General’s opinion.

The UK Employment Appeal Tribunal had reached a similar conclusion to the Advocate General in a recent case. In that case the claimant had suffered from a number of physical and mental conditions which were compounded by his obesity. The EAT held that obesity is not an impairment of itself but the effects of obesity may result in a person being disabled. In determining whether a person is disabled in the UK it is necessary to consider if there is a physical or mental impairment which has a substantial long term adverse effect on the employee’s ability to carry out normal day to day activities. The focus is therefore on the effect of the impairment rather than the cause.

Obesity is a growing problem in modern society with statistics suggesting that up to a quarter of the adult population in the UK is clinically obese. If the CJEU follows the Advocate General’s opinion, it could prove to be a significant issue for EU employers.

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