The decision in FOA (Kaltoft) v The Municipality of Billund

Facts

Mr Kaltoft was a child-minder for a local council in Denmark. He weighed 160kg (25 stones) and was categorised as clinically obese. He brought a discrimination case against his former employer because he claimed to have been dismissed as a result of his obesity. The District Court in Denmark referred the question of whether obesity could be a disability to the Court of Justice of the European Union (CJEU).

Judgment

The CJEU held that obesity is not a protected characteristic per se. There is therefore no general principle of EU law which prohibits discrimination on the grounds of obesity. However, the CJEU did find that obesity may fall within the definition of disability in the Equal Framework Directive if it is 'to such an extent as to hinder the full and effective participation of that person in professional life on an equal footing with other workers and the limitation is a long term one.'

The CJEU has therefore ruled that obesity itself is not a disability but its effects, such as decreased mobility or endurance, can be. The mere fact that a person is obese is not enough to render that person disabled. It will be a matter for national courts (the Industrial Tribunal in Northern Ireland) to decide whether the conditions required for obesity to constitute a disability are met.

What are the implications of the decision for employers?

• The principles of the Equal Framework Directive are incorporated in Northern Ireland by the Disability Discrimination Act 1995. This statutory provision protects against direct and indirect discrimination on the grounds of disability and against discrimination arising from disability. The Act also imposes a duty on employers to make reasonable adjustments for disabled employees in the workplace and to employees' working arrangements to counter the effect of an employee's disability.
• The Disability Discrimination Act 1995 outlines the requirements for establishing a disability in terms of the nature of the relevant impairment, the effect it has on day to day activities and its duration.
• The importance of the CJEU's decision is that obese employees do not now need to establish the existence of another medical condition which is related to their obesity, for example diabetes, in order to be classified as disabled. If the employee's obesity hinders their full and effective participation at work, the employee could be considered to be disabled.
• The implication of the decision is that employers could be required to make reasonable adjustments to working arrangements, seating and access to the workplace for obese employees and job applicants where the current arrangements place an obese person at a substantial disadvantage. An employer is obliged to make reasonable adjustments where it knows or ought reasonably to know that the individual is disabled. Therefore employers should remain alert to their employees' health and any workplace obstacles which may hinder those who are obese and therefore may be classed as disabled.
• Employers should be alert to an obese employee who is struggling at work. The employer should examine whether that employee may be classified as disabled before considering performance management. Where an obese employee has been absent on sick leave an employer should investigate the matter in order to determine whether the employee's obesity is the cause of the absence and, if so, whether it sufficiently hinders the employee to be classified as a disability. M-23030736-1 2
• Employers should also consider whether their procedures for dismissing employees, making redundancies, or promoting employees could disadvantage obese employees who may be categorised as disabled.
• Finally, the conduct and comments of other members of staff will now fall into question, particularly as that conduct may amount to disability discrimination, in respect of which the employer may be vicariously liable.