Case Commentary: Fag og Arbejde v Kommunernes Landsforening and the social implications of obesity as a disability

Posted by Fojan Nourouzi on 13 November 2015

The Court of Justice of the European Union has recently ruled in Case C-354/13 Fag og Arbejde v Kommunernes Landsforening (‘Kaltoft’) [2015] All ER EC 265 that obesity could potentially constitute a disability.

Mr Kaltoft was a childminder hired by the Danish public authorities. After 15 years he was dismissed on the grounds of an alleged decline in workload; but he was unable to ascertain the specific reasons for dismissal. It was agreed that his obesity was mentioned at the meeting, but the manner in which this was discussed was in dispute.

The Court held that although there was no general EU law principle which an employee could rely upon against an employer for discrimination on the grounds of obesity, in certain circumstances obesity could constitute a disability and therefore fall within the ambit of the Equal Treatment Directive 2000/78. This is engaged if an employee’s ‘obesity entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’.  

The rationale of the reasoning above is that it is the individual’s current situation which is important, not the cause or how they have arrived at their obesity. A similar conclusion has already been reached in Walker v Sita Information Networking Computing Ltd CSRC vol 37 iss 3/1 when it was decided that it was not relevant to consider how an impairment is caused because the focus is on the effect of the impairment. ‘Impairment’ under the Disability Discrimination Act 1995 should therefore be given its ordinary meaning.

A potential reform in this area of law could be to recognise a distinction in the causes of obesity. One example would be a duty to make reasonable adjustments for employees who have become obese due to some other impairment leading to their obesity, such as diabetes. However, it is interesting that the EAT recently decided in Metroline Travel v Stoute UKEAT/0302/14/JOJ that Type 2 diabetes controlled by diet does not automatically qualify as a disability as abstaining from sugary foods is not considered to have a ‘substantial adverse effect on day-to-day activities’ (see s 20 of the Equality Act 2010). This decision indicates the complexity of this area of law.

Having taken into consideration the arguments against this change of law, one must emphasise that it is not the case that ‘obesity’ is now classified as a disability and so obese employees are entitled to sue for disability discrimination. Instead it should be taken as the effects of ‘obesity’ can potentially be classified as a disability.

Playing devil’s advocate, it is somewhat ironic that medically, when someone is classified as obese they are provided with nutritional and fitness advice to enable them to adjust their lifestyles accordingly. However, legally speaking, if you show that your obesity interferes with your full and effective participation at work then the law accommodates the individual by focusing on their current situation. As a result, one could argue the new law on obesity may act as a disincentive on getting people to better their health. For example, Steve Miller, a weight loss expert who presented Fat Families argues that 'if we say being obese is a disability, there is a danger it will encourage people to stay fat to enjoy a life on benefits and celebrate the joy of getting a free car parking space.’ 

On the other hand, one could pose the question what would be the alternative? For instance, if employers were allowed to discriminate against obese employees and thus terminate their employment for that reason, the effect may be that such employees could struggle to retain employment. So, if their employment situation and obesity status would remain the same, this change in law is positive for society as a whole, specifically, as recent figures from the NHS show that the UK has the highest level of obesity in Western Europe and that on estimation, over half of the population could be obese by 2050.

This area of law is very much assessed on a case by case basis and an obese employee must show that their weight hinders their full and effective participation in professional life. In addition, even when an obese employee passes such a test, activating duty under s 20 of the Equality Act 2010 to make adjustments, this duty on the employer is still subject to reasonableness. An example provided by Clive Coleman, BBC’s legal correspondent is that ‘it may be deemed reasonable for a Premier League football club to make two seats available for someone disabled through obesity, but not for a small, non-league club’.  

The ultimate question as to whether this was the right approach for the court to take is a difficult one. Commentators such as Tam Fry, spokesman for the National Obesity Forum, fear that ‘[t]his has opened a can of worms for all employers. They will be required to make adjustments… It will cause friction between obese people and other workers.' 

The ultimate question is, do we take a hard line on obesity and disregard its causes or do we consider these and as a more targeted response address the causes as well as the effects?

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Fojan Nourouzi

Written by Fojan Nourouzi

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