On 12 June the European Court began hearing a case involving a Danish childminder, Mr Kaltoft, who alleges he was fired because is overweight. His former employer, local authority Billund Kommune, claims his size prevents him from carrying out all of his duties. It cites being unable to bend down and tie childrens’ shoelaces as an example.
Kaltoft is arguing that discrimination against employees because of their obesity contravenes EU discrimination legislation. If this principle is established, it would have far reaching implications right across Europe, and all member states would be obliged to follow it.
The latest figures suggest that around 25% of UK adults are classed as obese, and many other European countries also have high levels of obesity. Employers across Europe will therefore be watching this case with interest.
The employers appear to be defending the case on the basis that no such legal principle exists and that in any case the dismissal was on redundancy grounds. Although the case has now been heard, it will still be a while before the decision is released. While litigation is always unpredictable, many commentators believe the European Court will be reluctant to establish a precedent that obesity per se is a disability.
Kaltoft appears to be arguing that it was his physical appearance rather than his ability to do the job which was behind the decision to dismiss him. But if this amounts to direct discrimination, what about other kinds of ‘lookism’ – such as those based on height or hair colour – which can also prove a factor in securing or retaining a job?
It seems unlikely the European Court will want to open the door for such a significant widening of the scope of EU discrimination law. After all, that is why there is protection across most of Europe against unfair dismissal.
On the other hand, it is difficult to understand why lifestyle changes alone account for the fact that so many people are unable or unwilling to control their weight. It is often described as an epidemic, suggesting that it is a form of illness. That may open the way for arguments medicalising obesity as a condition in itself, if not in this case, then in later litigation.
Given that obesity has such well-documented physical effects, ranging from restricted mobility to diabetes and certain forms of cancer, a legal debate about whether it is a disability in itself may in fact not be the end of the matter.
The latest appeal case on this topic in the UK adopted a pragmatic approach when dealing with a claim from an obese man who also had multiple physical impairments.
It said that while obesity was not a disability in itself, in this case it had led to substantial physical and mental impairments, which meant that he qualified as a disabled person under the Equality Act.
Many people with long-term obesity will have impairments that will mean they qualify for protection against discrimination in any event. Employers have an obligation to make reasonable adjustments to allow people to take up an offer of employment or continue to work in these circumstances.
There have been few cases specifically dealing with the extent of these duties where the disability is obesity-related. Whatever the outcome of the Danish case, we can expect more such cases to emerge in the future.
In short: dismissing an employee because of any physical attribute is likely to be unfair, unless it affects their ability to do the job.