Extreme obesity may become a disability according to EU Law which could create potential problems for employers.

The Advocate General of the European Court of Justice (ECJ) in Luxembourg issued a preliminary ruling on a claim by Karsten Kaltoft, a Danish childminder who was dismissed by his local city council after reportedly being unable to bend down to tie up shoelaces. The Advocate General found that that very severe obesity, classified as a body mass index (BMI) of more than 40, could be considered a disability.

The European Court of Justice will consider the case of Kaltoft in detail and if it upholds the Advocate General's view, it could lead to widespread changes on how employers deal and support obese staff. Heather Grant, employment lawyer at North West law firm Maxwell Hodge said: “At the moment employers need to be aware of current developments in Europe on obesity. The Advocate General's opinion is just that, but it essentially acts as advice to the judges of how to interpret the law. A decision from the European Court of Justice on obesity as a medical disability can be expected within the next four to six months.”

Currently obesity is not considered a disability, nor is discrimination on the grounds of obesity unlawful. But Heather warns that even if obesity itself is not a disability, an obese worker may be disabled by virtue of their other impairments. Those who are obese are more likely to suffer from mobility issues and diabetes which are well established disabilities already. Heather said: “Employers don’t need to start buying in bigger chairs and desks for overweight staff yet, however it may come to that in the future, depending on what happens ECJ's decision. “The Advocate General's opinion sets out a precedent and employers need to be more careful around this issue. At the moment obesity in itself is still not judged a disability and there is a question of whether it ever will be. However if a worker is obese an employer should look out for other symptoms/ health issues that may qualify as a disability e.g. diabetes, because they may have to make adjustments for those conditions regardless of the obesity itself.

“Notwithstanding these other health issues, there is still some room for doubt as to whether a worker particularly determined to lose weight will meet the definition of disability because the Equality Act requires the health problems to be long term and often by losing weight a worker will see an improvement in their health issues. My advice for employers is always to treat each worker on a case by case basis. If in doubt, err on the side of caution: seek medical and legal advice. Employers should remember that discrimination claims don’t require staff to have a particular length of service and are claims open to all workers not just direct employees.”