Could obesity be the next disability?

In a case that is being decided by the European Court of Justice the question of whether obesity could be a disability may be answered, and could have effects on the law in the UK.

Background

In employment law cases where there is a question about the applicable EU law, member states can refer to the European Court of Justice (ECJ) for a decision. Before a decision is made the Advocate General will review the case and publish their opinion.

In this case which has been referred from Denmark the employee worked as a child minder until he was dismissed after 15 years of service. The employee was classed as severely obese due to his BMI of 54.

The employee claimed that this was the reason for his dismissal and pursued a claim for disability discrimination in the Danish Courts.

The Law

In the UK the Equality Act 2010 implements European law which is set out in the Equal Treatment Framework Directive. The Directive does not define “disability”. However, within the Equality Act disability is defined as a “physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”

The Decision (so far)

The Advocate General has published his decision and has stated that there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right.

However, he went on to state that severe obesity may amount to a disability under the Equal Treatment Framework Directive.

The reason for this is that a disability must represent a limitation that hinders a person’s full and effective participation in professional life on an equal basis with other workers. There can be long-term physical, mental or psychological impairments that do not make certain work impossible, but which make it more difficult and demanding to carry out that work.

It seems therefore that whether obesity satisfies the definition of disability will depend on the severity of the condition.

Points to note

Although on its own obesity is unlikely to be a ‘disability’ the effects of the persons obesity may make them a disabled person for the purposes of discrimination legislation.

The Advocate General’s opinion is not binding, it is provided for guidance to the European Court of Justice (ECJ) and whilst the ECJ do not have to follow the opinion it is likely that they will in this case. We will know for certain what the position is when they publish their decision in a couple of months, so watch this space!

If you want to read more you can find the full transcript of the decision at www.bailii.org/eu/cases/EUECJ/2014/C35413_O.html