Judgment Could See Obese Individuals Getting The Same Discrimination Rights In The Workplace As Employees Who Are Gay Or Disabled.

The European Court Of Justice (ECJ) is expected to hand down its decision this week (18th December) on the controversial issue of whether individuals who are obese can have the same discrimination rights in the workplace as employees who are gay or disabled. The eagerly awaited decision relates to the case of Danish nursery worker, Karsten Kaltoft, who was sacked by his local authority, Billund Kommune, purportedly on the grounds of redundancy. Mr Kaltoft argued that this explanation was a sham and that he had been dismissed because he could not bend down to tie up a child’s shoe laces.

Karsten Kaltoft claimed he was discriminated against because of his size and weight and the Danish courts referred the issue to the ECJ. In July this year, the Advocate General, Niilo Jaaskinen,advised the ECJ following the hearing on 12 June 2014 that obesity does not of itself automatically amount to a disability, but it could if the individual was morbidly obese. The ECJ has conducted a more detailed analysis of the case, but if the ECJ agrees with Mr Jaaskinen, it will be passed back to the Danish Court for a decision as to whether Mr Kaltoft’s obesity meets the ECJ’s definition. A raft of cases are expected to follow if successful.

Currently in the UK, the Equality Act 2010 protects individuals from discrimination if they have a ‘protected characteristic’ such as disability. The Act protects physical and mental conditions which result from obesity, but this was the first time a European Court had considered whether obesity is a disability in its own right. Omer Simjee, an employment Partner from national law firm Irwin Mitchell said: “If the ECJ agrees with the Advocate General then we are even further down the road to obesity being recognised as a disability. Employers will no doubt be looking at this ECJ judgment closely because the repercussions could be significant. “There is a high likelihood that an employer could be under a duty to make ‘reasonable adjustments’ to accommodate obese employees which could mean that, for example, they are under a legal obligation to provide car park spaces close to the workplace entrance, provide special desks and chairs, or provide duties which involve reduced walking or travelling.”