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Malcolm Gregory

Expert Opinion: Obesity – is it about to be recognised as a disability, and what does this mean for UK employers?

A recent ruling in a case in the European Court of Justice looks likely to change the employment law on obesity, which may now be a disability in itself.

Until very recently UK courts and tribunals have been reluctant to say that obesity amounted to a ‘disability’ for the purposes of employment and equality law.

This is likely to change. A recent ruling in a case in the European Court of Justice brought by a Danish child-minder looks likely to change the law, and we aim to examine the case and highlight the possible implications for employers.

The facts of the case

Mr Kaltoft had been employed as a child-minder by a Danish local authority for 15 years; he was classed as clinically obese with a BMI of 54.

He was dismissed by the local authority in November 2010 for being unable to perform all his duties due to his size. In particular, the fact he could not bend down to tie the children’s shoelaces was a factor in his dismissal.

Mr Kaltoft brought a claim against the local authority that his dismissal was due to his obesity, and that this amounted to disability discrimination.

The case was referred by the Danish courts to the European Court of Justice, and the Advocate General has provided an opinion which states: “If obesity has reached such a level that it plainly hinders professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails then it can be considered to be a disability”.

This opinion will now be considered by the European Court of Justice, which usually accepts the Advocate General’s opinion. The case will then be remitted back to the Danish courts to consider whether Mr Kaltoft’s dismissal was discriminatory.

What does this mean for UK employers?

It is not the case that all obese employees will automatically be regarded as disabled. Under the provisions of the Equality Act, disability requires a long-term condition, which has a substantial adverse effect on the ability to undertake normal day to day activities.

There will be many individuals who are overweight or obese who do not have medical complications and who are able to engage fully at work and perform their role. Employers will not be required to make adjustments, as there is no real impact on the ability to work.

Equally, where an employee is substantially adversely affected by obesity, an issue will arise whether there are any reasonable adjustments which may be able to assist that employee undertake their role.

What of the child-minder who can’t bend down to tie a child’s shoelaces, or perform physical games with children? What of the employee who is unable to stand on a production line because of obesity?

There are circumstances where adjustments may assist employees to undertake their role, for example car parking space, adaptions to desk and seating. As ever the question is whether reasonable adjustments can be made to assist the employee to perform their role.

Malcolm Gregory is a partner at Withy King in Swindon, where he specialises in employment law. Contact him on 01793 401052 or at