Case study: Is obesity a disability?

BACKGROUND: The complex world of holidays and sickness is an ever increasing minefield. However, a recent case Sood Enterprises Ltd v Healy helped clarify one aspect of how holiday pay is affected by sick leave.

If so, employers would be required to make reasonable adjustments, which could include providing a car parking space near the front door, providing bigger chairs and desks and amending duties to accommodate reduced mobility. Mr Kaltoft is employed by the local city council as a child-minder. He weighs over 25 stone and, with a body mass index (MBI) of 54, he is morbidly obese. Mr Kaltoft’s mobility is greatly reduced and this restricts his ability to perform some of his duties, such as the inability to bend down to tie the children’s shoe laces.

The council terminates his employment and Mr K claims that the reason for this is because of his obesity and amounts to unlawful discrimination. The council refutes this claim.

OUTCOME: The Danish courts refer the case to the Court of Justice of the European Union where it is considered by the advocate general.

It is decided that, while obesity is not a protected characteristic per se under equal treatment framework directives, severe obesity can come within the definition of a disability.

According to the EU, disability is defined as a physical or mental condition that makes ‘carrying out that job or participation in professional life objectively more difficult and demanding’.

The advocate general’s official opinion of this case is that having a BMI of 40 or more (classed as morbidly obese) might be deemed to be a disability if the obesity is having a real impact on the employee’s ability to participate in the work. It’s important to understand the limitations on an employee’s abilities to carry out the role and not necessarily the cause of those limitations.

Following this opinion, the EU Court of Justice is due to make a final judgement in the next four to six months on whether severe obesity can in fact be classed as a disability.