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Is obesity a ‘disability’?

Last week the Court of Justice of the European Union (CJEU) began hearing the Danish case considering whether discrimination on the grounds of obesity is contrary to EU law.

Given that of the workforce 67% of men and 57% of women in the UK are classed as either overweight or obese this could greatly alter the scope of protection.

The current UK law

Under the Equality Act 2010, “A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

When considering the question of whether an individual is disabled, it is the impairment itself that should be considered rather than its cause even if the cause of the impairment is a condition which is excluded from the definition of disability (Walker v Sita Information Networking Computing Ltd). An example of this is liver disease caused by alcohol dependency; alcoholism is not a disability under discrimination law, but the liver disease caused by alcoholism would qualify as an impairment and so can give rise to a finding of disability.

In the case of Mr Walker, it was clear that he did suffer numerous physical and mental conditions (including asthma, chronic fatigue syndrome, knee problems, and anxiety), which interfered with his day-to-day life.   As such, it did not matter what the medical cause the underlying issues was the consequence, not the cause of the condition.

The Equality and Human Rights Commission’s “Equality Act 2010 Guidance “suggests that account should be taken of how far a person can reasonably be expected to modify their behaviour to prevent or reduce the effects of an impairment on their normal day-to-day activities.”

It might well be possible for some obese individuals to lose some weight by modifying their behaviour but whether it would be reasonable to expect them to do so to a level where the impairments would be alleviated, will be an interesting and difficult evidential question.

The case before the CJEU

The case before the CJEU concerns a local authority employed child minder. Mr Kaltoft was dismissed as he was deemed unable to perform his duties due to his size. He weighed more than 25st at the time he was dismissed. In support of the decision to dismiss, the local authority pointed to the fact that he was unable to bend down to tie children’s shoelaces.

The CJEU is being asked two questions:

  1. Is there an EU prohibition of discrimination on the grounds of obesity? and
  2. Can obesity be deemed a handicap under the Directive covering disability discrimination?

It will be interesting to see whether the CJEU takes a restrictive approach, or takes note of the recent decision of the American Medical Association to categorise obesity as a ‘disease’ rather than a condition, which may make it more likely that the US courts consider obese workers to be covered by the Americans with Disabilities Act.

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