Daphne Romney QC, barrister at Cloisters Chambers comments on the CJEU decision on whether obesity can be a disability.
The CJEU’s decision on Kaltoft and obesity told us what most of us already thought. The case will be remitted to the Danish Court to decide whether Mr Kaltoft, now weighing some 25 stone, can be considered as disabled and whether disability in fact played any part at all in his dismissal as a child minder, a job he done for 15 years. Mr Kaltoft claims that he was able to do his job and the employer denies that his obesity had anything to do with his redundancy.
The Advocate-General had set a number of hares running, most notably that although obesity would not normally be a disability, someone suffering from severe obesity with a BMI over 40 might be considered as disabled if the effects proved a hindrance to participation in professional life. That would have caused a lot of problems for employers – how do you know what someone’s BMI is? Most people do not even know their own…
In its judgment today, the CJEU steers clear of defining disability by reference to BMI. Instead, it holds that although obesity as such is not a disability, in certain cases it can constitute a disability, in particular where “the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity”.
This does not give clear answers to an employer on how to determine whether obesity is a disability but then disability within the legal meaning in the Equality Act 2010 is usually fact dependent. Here it may well be that a severely obese employee would not be disabled if s/he has a sedentary job but might be disabled if, like Mr Kaltoft, he had to chase after children and tie their shoelaces and had physical, psychological or other problems which made fulfilling those functions difficult.
The CJEU did agree with the Advocate-General when he said that the origin of the disability was irrelevant, thereby laying to rest the argument that obesity was ”a lifestyle choice” for which the employee was to blame. This is plainly correct. Someone who develops diabetes or mobility problems as a result of their weight may have contributed to their condition, but so has the smoker who develops lung cancer or the alcoholic who develops cirrhosis; they are no less disabled because of the origin of their condition – nor is the drunk driver or the driver texting at the wheel who becomes paralysed as a result of the accident caused by their conduct. The law is not and should not be looking to define disability by culpability.
The effect of the judgment is to take domestic law only slightly further than its current state. In Walker v Sita Information Networking [UKEAT/12/0802], Langstaff J rejected the idea that obesity was a disability as such but said that the conditions arising from it could singly or together constitute a disability. In that case, the employee, who weighted 21.5 stone, suffered from “functional overlay compounded by obesity” which had a number of symptoms (including asthma, diabetes, high blood pressure, and bowel and stomach problems). The CJEU judgment today says that obesity can be a disability but only where the effect of that obesity hinders the employee’s “full and effective participation in professional life on an equal basis with other workers” on account of its effects. In both cases, the focus must be on the effects of the impairment and not the cause.