The Court of Justice of the European Union has recently provided a preliminary ruling which considers whether or not it is contrary to EU law to discriminate on the grounds of obesity and whether someone with obesity can be protected by the prohibition on disability discrimination. This article will discuss the decision of Kalsten Kaltoft v Kommunernes Landsforening case C-354/13, FOA ECLI:EU:C:2014:2463 and its implications.
Facts of the case
Mr Kaltoft was hired by a Danish public administrative authority as a childminder, working from his own home. He worked in that capacity for approximately fifteen years. Throughout this time he was ‘obese’ in terms of the World Health Organisation definition, having a Body Mass Index of over 30. In 2010 he was the only childminder to be dismissed. The written notice stated that he was dismissed on the basis of a decline in the number of children, therefore the workload.
The facts of the case have yet to be determined but it was agreed that, at a meeting to discuss his dismissal, obesity had been mentioned. There remains dispute over what was said and whether or to what extent, Mr Kaltoft’s obesity formed part of the decision to dismiss him. Mr Kaltoft raised a claim at the Court in Kolding, Denmark on the basis that, by dismissing him, the authority had discriminated against Mr Kaltoft because of his obesity.
Request for preliminary ruling
The Danish Court referred the four questions below to the CJEU for a preliminary ruling. Advocate General Jaaskinen delivered an opinion in July 2014 and the Court issued the preliminary ruling on 18th December 2014.
1. Is it contrary to Article 6 of the Treaty of Fundamental Rights of the European Union for a public sector employer to discriminate on the grounds of obesity in the labour market?
The Court agreed with the Advocate General in concluding that there is no legal basis in EU law for a principle of non-discrimination on the grounds of obesity as a stand alone characteristic. Accordingly the Court declined to answer questions two and three, which were;
2. If such a prohibition of discrimination on the grounds of disability exists, is it directly applicable as between a Danish citizen and a public authority as his employer?
3. If so, where does the burden of proof rest?
Instead the Court focussed on the fourth question.
4. If obesity can be deemed a disability, which criteria will be decisive for the assessment as to whether an individual’s obesity can be protected by the prohibition on discrimination?
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation does not provide a definition of disability, so the Court turned to its own case law.
Definition of disability- the story so far
The Court reaffirmed some of the principles discussed in its earlier decisions HK Danmark (on behalf of Jette Ring) EU:C:2013:222, Glatzel, C‑356/12, EU:C:2014:350 and Chacón Navas, C‑13/05, EU:C:2006:456.
In HK Danmark, the Court considered the impact of the ratification of the United Nations Convention on the Rights of Persons with Disabilities, which approaches the definition of disability as a social rather than purely medical model. In light of the UNCRPD, the Court had previously held that the concept of ‘disability’ must be understood as referring to a limitation which results in particular, from long-term physical, mental or psychological impairments which, 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 concept of disability does not require complete impossibility of exercising a professional activity, hindrance is sufficient.
The limitations of this definition were exemplified in the Advocate General’s opinion at para 34, where he discussed the case of ‘Z’ EU:C:2014:159. The case concerned a woman who had no uterus, and who was refused maternity leave by an employer after becoming a mother via surrogacy. She was held not to have a disability within the meaning of Directive 2000/78. The Court held that it was ‘not apparent from the order for reference that Ms Z’s condition by itself made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity.’
The concept is to be defined regardless of whether or not reasonable accommodation measures may or may not have been taken. The first step is to establish whether or not there is a disability. The reasonable accommodation measures are the consequence, not the constituent element of the disability.
Application of these principles to the fourth question in Kaltoft
The Court emphasised that the aim of the directive is to implement equal treatment and it would be contrary to that aim to define the scope of disability by referring to the origin of the disability. It does not depend on the extent of personal responsibility for, or contribution to, the onset of the disability.
Applying these principles, the Court went on to hold that obesity does not, per se, constitute a disability in terms of the directive. However, if obesity entails a long-term limitation which results in 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, it can be covered within the concept of disability for the purposes of directive 2000/78.
The fourth question sought guidance as to the decisive criteria in an assessment of obesity as a potential disability.
The Advocate General was quite specific in his approach to this issue. He looked at the three WHO categories of obesity and concluded; “most probably only WHO class III obesity,(BMI of over 40) that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood, that amount to a ‘disability’ for the purposes of Directive 2000/78.”
The Court did not follow this definitive approach, instead emphasising that it is for the national Courts to determine whether the test outlined above is met, but in doing so the Court suggested at paragraph 60 that contributing factors might be “reduced mobility or the onset of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.”
Implications
The Danish courts will now have to decide whether Mr Kaltoft’s obesity meets this definition, which incidentally, Mr Kaltoft himself has publicly denied,[1] as well as whether discrimination has occurred.
Back in the UK, the definition of disability for the purposes of the Equality Act differs from that of the directive. Under the Equality Act the impairment must have a ‘substantial adverse effect on the ability to carry out normal day to day activities’ whereas the directive is concerned with ‘full and effective participation in professional life.’
In spite of this distinction, the EAT had already reached similar conclusions to the CJEU, in the case of Walker v Sita Information Networking Computing Ltd UKEAT/0097/12/KN. In Walker, Mr Justice Langstaff also adopted a functional approach and concluded that obesity does not, of itself, render a person disabled but it may make it more likely that someone is disabled and may, assist an Employment Tribunal to conclude that the claimant has an impairment or other condition. He emphasised; “the purpose of the definition of disability is not to confine an impairment to that which can be shown to be given a medical label that is either a recognised physical or mental condition: it is to describe the nature of the impairment.”
The Statutory Code of Practice on Employment states at para 6.9: “In order to avoid discrimination, it would be sensible for employers not to attempt to make a fine judgement as to whether a particular individual falls within the statutory definition of disability, but to focus instead on meeting the needs of each worker and job applicant.”
In light of the decisions of Kaltoft and Walker, employers may now be more alert to the need to sensitively consider what reasonable adjustments may be necessary to meet the needs of obese workers who meet the definition of disability.
Last updated: 07 Apr 2016