15 September 2014
In a Danish Labour Court case, a child-minder who weighed 25 stone and had a body mass index of 54 was selected for redundancy when there was a reorganisation following a decline in the number of children.
He was selected for redundancy because he could not carry out some of his duties, such as not being able to tie a child’s shoelaces, because of his size. His complaint to the labour court was that he had been discriminated against because of his obesity.
The court subsequently referred the case to the Court of Justice of the European Union (CJEU) to establish whether obesity amounted to a disability under the EU Equal Treatment Directive, which prohibits discrimination in the workplace.
As with the majority of CJEU cases, an Advocate General delivers an opinion on the case before it goes to a full hearing. In the first part of his opinion, the Advocate General held that obesity was not a protected characteristic per se under the Equal Treatment Framework Directive – in effect,it is not an ‘automatic’ disability, such as cancer or multiple sclerosis.
He then considered whether obesity fell within the definition of a disability. He pointed out that the EU definition of ‘disability’ only covers the situation when a physical or mental condition makes “…carrying out of that job or participation in professional life objectively more difficult and demanding.”
He went on to say that “…in cases where the condition of obesity has reached a degree that it… plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability.”
If the CJEU agrees with the Advocate General’s opinion, which it does more often than not, then although obesity will not in itself be a disability, an employee might be disabled if their obesity has a substantial adverse effect on their ability to carry out their job.
The Advocate General also added that the question of disability does not depend on whether it is “self-inflicted”. The cause of an individual’s obesity is irrelevant; it may be due to excessive eating, a psychological or metabolic problem, or as a side-effect of medication. The key question is whether their obesity (whatever its cause) hinders their ability to carry out normal day to day activities.
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