European Court weighs in with obesity verdict

22nd January 2015

Employers will need to review circumstances for obese employees whose weight is causing them problems in the workplace, following a landmark ruling by the European Court of Justice.

The Court has ruled that if the obesity of a worker "hinders the full and effective participation of that person in professional life on an equal basis with other workers", then obesity can fall within the concept of "disability". The decision is binding across the European Union although the EAT's decision on Walker v Sita Information Networking Computing Limited (2013) had already laid down a marker domestically.

Although the judgement stops short of declaring obesity to be a protected characteristic against which all discrimination is prohibited, it means that employers, retailers and venues open to the public will have to review the way they treat overweight staff and customers. In the UK, obesity levels have doubled in the past decade and statistics show that around one in four people are overweight.

Employers have a duty to take 'reasonable' steps to accommodate any employee, visitor or customer whose obesity has more than a minor effect on their day-to-day activities. That could mean a bigger desk, larger chair or offering a parking space close to the office.

This applies not just to employers; anywhere that is open to the public, such as retail outlets, restaurants and sporting venues, will have to make reasonable adjustments for their customers. However, it is about a reasonable response, so it is very unlikely that a corner shop will be expected to make the same sort of investment as a major high street retailer, for example. There is no one-size fits all response to what is a major issue.

The case of Kaltoft v Municipality of Billund involved a Danish childminder who claimed that his employer had ended his contract of employment because of his weight, and that this amounted to unlawful discrimination. Mr Kaltoft was 5 feet 7 inches and weighed over 25 stone, with a BMI of 54, which is extreme or morbid obesity under the World Health Organisation classification.

The Danish court referred the case to the European Court of Justice (ECJ), asking whether obesity amounts to a form of disability under the Equal Treatment in Employment Directive. Following the ruling, the Danish courts will now have to review the case to decide whether Mr Kaltoft's weight has given rise to factors that can be classed as a disability.

Employers need to be careful they do not suggest that an overweight employee has only themselves to blame. This ruling potentially places obesity in the same position as other forms of risk taking such as ski-ing or horse riding. We do not refuse special treatment to someone who is unable to walk following a horse riding accident, and now we cannot refuse special treatment to someone who cannot fully participate in their work life because of their weight.

As well as dealing with the problems that obesity may give rise to employers are encouraged to promote healthy lifestyles at work.

For Emploment Law issues, please contact our specialist, Philip Hughes

This is not legal advice; it is intended to provide information of general interest about current legal issues.

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