Mr Kaltoft was a 25 stone Danish childminder employed by the Danish equivalent of a local council. His employment was terminated, after 15 years, when he was made redundant. As part of that process Mr Kaltoft’s obesity was discussed. Although obesity was not mentioned in the dismissal letter Mr Kaltoft claimed he was singled out for redundancy because he was obese. Following his dismissal Mr Kaltoft brought a claim in the Danish courts arguing first that obesity was a protected characteristic in itself under the Equal Treatment Directive. The Advocate General did not agree with him on this point. Secondly he argued that obesity is a form of disability. The Advocate General agreed with him that obesity could be in severe cases.
The Advocate General stated that where the obesity has reached a degree that it plainly hinders full participation in professional life, due to the physical and/or psychological limitations on the obese person, then it can be considered a disability. He commented that only someone who has a BMI of 40 or more, or is according to the WHO’s classification “severely, extremely or morbidly obese”, has a disability.
What this means for employers:
The Court of Justice normally, but not always, follows the opinion of the Advocate General. They will make their decision in 4 to 6 months’ time. Should the Court agree with the Advocate General the impact will be felt in the UK immediately. However, not all employees who are morbidly obese will be disabled. It will depend on how their disability affects their ability to work. Whether someone has a BMI that’s 40 or more should be established by a referral to occupational health where appropriate. Employees who gain protection are likely to ask for reasonable adjustments such as bigger chairs, more accessible offices or a parking space which is closer to the office entrance. More challenging for employers will be eradicating any “fatist” attitudes, for example during office banter. If the European Court does accept the Advocate General’s view updating and re-iterating diversity policies will be a key action point for employers seeking to bring about this culture change.