The European Court of Justice (ECJ) has just ruled in the case of FOA v KL [2014] EUECJ C-354/13 that obesity could be classed as a disability for the purposes of European discrimination law (the “Equal Treatment Directive”).

The case before the ECJ concerned a Danish man, Mr Kaltoft, who had been fired from his position as a childminder by a Danish local authority. He believed this was because of his obesity and sought compensation for discrimination on grounds of disability. The Danish District Court referred four questions to the ECJ for what is known as a “preliminary ruling.” This means the ECJ will consider the questions in light of EU and make a ruling as to the answer, which can then be used by the national court to decide the matter accordingly.

The ECJ first addressed whether EU law lays down an express fundamental principle of non-discrimination on grounds of obesity. Non-discrimination is a fundamental principle of the EU, which enables free movement and preserves human rights. However, the right not to be discriminated against on the grounds of your gender or your age, for example, are well-established and listed in the Equal Treatment Directive. Ultimately, the court concluded that the grounds on which the fundamental principle of non-discrimination are exhaustively listed in the Equal Treatment Directive and it could not be read to include obesity. The Danish court’s second and third questions were therefore not addressed.

However, the ECJ used the meaning of disability to find that obesity is a disability to the extent that it limits someone;

  1. on a long-term basis;
  2. physically, mentally and/or psychologically; and
  3. in a way which may hinder the full and effective participation in professional life.

Importantly, obesity is not itself a disability because it does not necessarily limit someone in any way. However, someone could be classed as disabled if their ability to participation in professional life is hindered by reduced mobility, discomfort or medical conditions caused by obesity. It is for Member States to determine whether someone has been discriminated against because of their obesity.

It is also worth noting that the Advocate General in the Kaltoft case agreed with the judges’ final ruling that obesity could be classed as a disability. However, he was of the opinion that only someone with severe obesity, that is to say someone with a BMI of over 40.00 (classed as severe, extreme or morbid obesity by the WHO), could fall into this category. This was not the judgment of the Court, but could offer a benchmark for deciding future cases.

The ECJ ruling is in line with the Employment Appeal Tribunal case of Walker, whereby an obese British man was found to have been disabled because of the effects of his obesity. Both the EAT and the ECJ cases make it clear that the cause of the disability is not important. It does not matter if the person has caused it himself or herself or indeed what the underlying cause of the disability is. The court is only concerned with the impairment and how this effects participation in professional life.

It is worth noting that such a ruling brings obesity into the realm of disabilities in the workplace. In the UK, employers are required to make reasonable adjustments for disabled workers and it may be that an employer is required to do the same where the effects of someone’s obesity amounts to a disability.