When a Danish Council dismissed 25-stone child-minder Karsten Kaltoft for being unable to tie the laces of the children in his care, without a colleague’s help, few would have predicted the potential impact on EU employers.
Abigail Halcarz, a lawyer in the Employment team at commercial law firm SGH Martineau explains: “Mr Kaltoft was dismissed in November 2010 after 15 years of service, at which point he was considered severely obese, with a BMI of 54 – the World Health Organisation designates as severely or morbidly obese any individual with a BMI in excess of 40.
“Claiming he had been dismissed because of his obesity, Mr Kaltoft brought discrimination proceedings, which required the Danish Court to seek clarification from the Court of Justice of the European Union (ECJ) on whether there is a general prohibition in EU law on all forms of discrimination, including obesity, or whether obesity should be classified as a disability within the scope of the ‘Equal Treatment Framework Directive’ (the Directive).
“Although the Directive does not define ‘disability’, case law has established it to be limitations resulting from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person in professional life on an equal basis with other workers.
“The ECJ decided no law prohibits discrimination on the grounds of obesity, but in certain circumstances it could be regarded as a disability under the Directive, ensuring every case will need to be considered on its own merits, by national courts.
“Whether obesity satisfies the definition of disability under the UK’s Equality Act 2010 will depend on the severity of the condition, but obesity in itself is insufficient to be a disability. However, it could amount to a disability where severely obese employees suffer problems with mobility, endurance and mood, for example – a situation likely to result in some difficult conversations for employers assessing the impact of an individual’s weight.
“To ensure they comply with their statutory duties and avoid claims for disability discrimination, employers must understand this obesity issue and any likely impact it might have on an employee’s ability to do their job.
When might obesity be considered a disability?
“Given the definition of disability under the Equality Act 2010, which is similar to that under the Directive, there are circumstances under which an obese employee may be considered as disabled, including; someone suffering from type 2 diabetes who is often absent or needs to attend hospital regularly because of their condition; someone who suffers from depression as a result of their weight; someone with a heart condition or breathing difficulties linked to their weight; or someone with severe mobility issues (e.g. uses a wheelchair and finds it difficult to use public transport) as a result of obesity.”
Employers’ duties with regard to disability discrimination
Under the Equality Act 2010, employers’ duties in respect of people who are considered ‘disabled’ apply to disabled employees and also job applicants too – another reason for this issue to be taken seriously by employers.
Under the Equality Act 2010, it is unlawful for an employer to:
Discriminate directly by treating a job applicant or employee less favourably than others because of disability, although positive discrimination in favour of a disabled job applicant or employee is allowed
Discriminate by treating a job applicant or employee unfavourably because of something arising from a disability without rational justification. For example, an employer dismisses a worker after three months’ sick leave, despite knowing they have type 2 diabetes and the absence is disability-related – the employer’s decision is not based on the worker’s disability, but the worker has been treated unfavourably because of something arising in consequence of their disability. In some cases it is possible to ‘justify’ this discrimination and avoid liability;
Discriminate indirectly by applying a provision that disadvantages job applicants or employees with a disability, without objective justification
Fail to comply with its duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage;
Subject a job applicant or employee to disability-related harassment;
Victimise a job applicant or employee because they have made or intend to make a disability discrimination complaint; or
Ask job applicants pre-employment health questions other than for a prescribed reason.
Lessening the risk
Halcarz continues: “This case highlights the need for employers to review their equal opportunities and sickness absence policies to ensure they cover all disability discrimination issues, including in some cases obesity. Reviewing the training of managers that deal with these matters is also a good idea, to ensure they understand the current legal position and how it applies in the workplace.
“Employers must be more aware of the health consequences of obesity and how they can affect an employee’s performance. Employers must make reasonable adjustments to an individual’s work or working arrangements to help counter the effects of disability, including obesity.
“The ruling also indicates it may not be necessary for an obese employee to highlight a related medical condition (such as a cancer or diabetes that may have contributed to the obesity) before they can be categorised as a disabled person – if obesity causes reduced mobility it may be sufficient to constitute a disability.
“It is important to remember if an employee is dismissed because of any physical attribute, it is likely to be unfair and potentially discriminatory, unless it affects their ability to do their job and no reasonable adjustments can be made to alleviate the situation – in simple terms, seek advice first.”
Abigail Halcarz is an employment solicitor in the Commercial Group at UK top 100 law firm SGH Martineau LLP., acting for a variety of private companies, educational establishments and individuals in both contentious and non-contentious employment matters.
