The ECJ has clearly ruled that there is no protection from discrimination on the grounds of obesity itself. 

However, the effects of a particular individual’s obesity may, in certain circumstances, mean they can be regarded as disabled for the purposes of EU law. Effectively if the condition (in this case obesity) is long term and prevents the individual from being able to work on an equal basis to their colleagues or they can only perform the functions of their role with discomfort, they could be covered.

Whilst, in the absence of medical guidance, it may be difficult for employers to make a judgement call in each case as to what limitations an obese person faces (or may face in work), it remains a fairly high bar to pass. Indeed, the Advocate General talked about a BMI of 40 or over (i.e morbidly obese) as being a potential key indicator of when obesity ‘may’ be likely to start to impact on the ability to carry out a role.

Perhaps the most interesting part of the ruling was the deemed irrelevance of whether the worker had been at all responsible for the onset of obesity. Given the strict nature of the test for what constitutes a disability and the heavy focus on the effect of the condition, this is undoubtedly the right decision legally. It is also consistent as we don’t, for example, ask whether a wheelchair user did something potentially dangerous which resulted in their condition! However, it will not stop some unsympathetic employers feeling it is unfair that they could have to consider making reasonable adjustments for those they believe are directly responsible for their own challenges.

In practice, unlike some other forms of discrimination, the obese applicant is at least less likely to be rejected at the application form stage (on the basis you would be less able to tell weight from a CV or application letter). However, that just may mean that potential difficulties arise at the interview stage or once an individual has commenced working. When faced with a person who is, or could be morbidly obese, the prudent employer would be well advised to proceed cautiously if they are thinking of declining or ending employment simply on this basis.