One of the European Union’s top legal advisors has warned employers that they may not discriminate against grossly fat workers because “morbid obesity may come within the definition of disability” for the purposes of the EU’s Equal Treatment in Employment Directive.
Niilo Jääskinen, an advocate general at the European Court of Justice, yesterday delivered a preliminary ruling in a case brought by Karsten Kaltoft, a 350lb (25 stone) Danish child-minder who claimed his employers at the local municipality had sacked him because he was too fat.
A judgment by the European Court of Justice in line with the preliminary ruling is likely to follow, meaning British employers will be obliged to accommodate grossly fat workers with special seating, transport and other facilities if needed.
Jääskinen pointed out that while “there is no stand-alone prohibition on grounds of obesity in EU law,” if obesity has reached such a degree “that it plainly hinders participation in professional life,” then this would amount to a “disability” for purposes of the directive.
He defined this degree of “extreme, severe or morbi” obesity as “a BMI [body mass index] of over 40.” This degree of fatness, Jääskinen ruled, could suffice to create limitations, such as problems of mobility, endurance and mood, and therefore the employer is obliged to take “reasonable measures to accommodate the disabled individual.”
According to the preliminary ruling, Kaltoft had never weighed less than 160kg (353lb/25 stone 3) in the 15 years he worked as a child-minder and therefore with a body mass of 54 he was classified as obese.
While the municipality gave a decline in the number of children as the reason for the Kaltoft’s dismissal, Kaltoft claimed that his dismissal was rooted in unlawful discrimination against him due to his weight, and with the support of his union he had taken action in a Danish District Court claiming damages.
The Advocate General added that the origin of the disability is irrelevant. The notion of disability is objective and “does not depend on whether the applicant has contributed causally to the acquisition of his disability through “self-inflicted” excessive energy intake. Otherwise physical disability resulting from reckless risk-taking in traffic or sports would be excluded from the meaning of disability.”