In the EU case of FOA (Kaltoft) v Billund  CJEU Case C 354/13 Mr Kaltoft was a childminder who was morbidly obese, with a BMI of 54. He was made redundant by a council in Denmark but he claimed it was because of his obesity, which he said amounted to a disability. A Danish District Court referred four questions to the European Court of Justice (ECJ) for a preliminary ruling.
Questions for ECJ
The first three questions dealt with whether it was unlawful to discriminate on the grounds of obesity, whether any such right was directly applicable, and querying the appropriate burden of proof. The ECJ held that obesity itself cannot be regarded as a ground for protection against discrimination, and therefore the second and third questions need not be answered. The fourth question related to whether obesity could be deemed to be a disability under EU Directive 2000/78/EC (the general framework for equal treatment in employment and occupation) and if so, how to determine if an obese person is protected against disability discrimination.
When is Obesity a Disability?
The ECJ held that in the event that “under given circumstances, ‘obesity’ entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one“, it could be a disability. The origin of the disability, or contribution to it, were irrelevant. The Court went on to find that obesity could be deemed a disability or could lead to disability.
The case was referred back to the Danish courts to determine whether Mr Kaltoft was disabled, given the fact that he had carried out his duties for some 15 years and seems to have been obese throughout.
Where does that leave other employers and employees in the EU?
Obese employees might be disabled by that obesity, although obesity, of itself, is not a disability under the Equal Treatment Directive. You have to look the effect of the obesity – the cause or origin of any disability is largely irrelevant, except insofar as it might point the way to reasonable adjustments or accommodations that might be considered to alleviate the impact of any disability.
Thanks to Legal Island who have referred to the BBC website which has some interesting analysis and conjecture about what this case might mean for employers and service providers throughout Europe. For instance, Paul Callaghan, of Taylor Wessing solicitors, has stated that:”… workers who suffer from, for example, joint problems, depression, or diabetes – specifically because of their size – will be protected by the European Equal Treatment Framework Directive and cannot be dismissed because of their weight.”
Clive Coleman, BBC’s legal correspondent, states that the Ruling will mean employers must, on a case by case basis, make reasonable adjustments such as providing larger chairs or special car parking, and protect such employees from verbal harassment.
But there are wider implications. Providers of goods and services such as shops, cinemas and restaurants will also have to make reasonable adjustments for their customers, which might include things like special seating arrangements.
Does this mean that Michael O`Leary will need to put some larger seats on Ryanair for its obese passengers?