Kaltoft v The Municipality of Billund: is obesity a disability?
Employment solicitor, Nicola Robson, discusses the case of Kaltoft v The Municipality of Billund, and whether obesity can be considered a disability within law.
This case arises from an employment claim in the Danish courts. Mr Kaltoft was employed as a child minder for the local council and he had been employed for over 15 years. Mr Kaltoft weighed over 25 stone and had a BMI of 54. Under the World Health Organisation (WHO) classifications he is morbidly obese.
Mr Kaltoft was unable to perform some aspects of his role. For example, he couldn’t bend down to tie up the children’s shoe laces. The council terminated Mr Kaltoft’s employment. He claimed this was because of his obesity and amounted to unlawful discrimination.
The case has been referred to the CJEU. It has been asked to rule whether EU law prohibited discrimination on the grounds of obesity itself and/or whether obesity could be considered a disability.
The Advocate General has concluded that EU law doesn’t include a general principle prohibiting employers from discriminating on grounds of obesity.
However, the AG went on to say that severe obesity (BMI of over 40) can be a disability for the purposes of the Equal Treatment Directive if:
“…it hinders full and effective participation of the person concerned in professional life on an equal basis with other workers.”
It is then for the national court to decide whether the person’s obesity amounts to a disability in their particular case.
What this means for you
This is only the AG’s opinion and the outcome has not been decided. But if the CJEU follows the Advocate General opinion, the UK will be obliged to consider whether cases of severe obesity in itself amounts to a disability.
Employers should look beyond the cause of an employee’s symptoms and consider how those symptoms adversely affect the employee’s day-to-day life. The more severe the level of obesity, the greater its impact will have on the individual's health. So the more likely it will constitute a disability.
Look at the specific facts of every situation before making a conclusion focusing on what the employee can and can’t do, rather than just their BMI. If there’s doubt as to the extent that an impairment affects an employee then a medical report should be obtained.
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