There are a number of legal protections for people with disabilities; these stem from European law and centre essentially on the right to not suffer discrimination. These protections are particularly important in employment law, so a recent judgment on obesity as a ‘new’ disability has got employment lawyers very excited.
The case of Kaltoft is not technically a ‘judgment’ but is the opinion of an Advocate General. To save pages of detail, the Advocate General provides a legal opinion on questions referred by a national court of one of the European Union countries (in this case Denmark). In most cases the opinion is later confirmed by the European Court of Justice.
In this case, Mr Kaltoft was a babysitter working for the Municipality of Billund (the equivalent of a district council in England and Wales). He was dismissed after 15 years’ employment and alleged the reason was because of his obesity which was a disability under Danish and EU law.
Neither side disputed Mr Kaltoft was obese. According to WHO guidance, anyone with a BMI over 40 is Class III obese (severe, extreme or morbid obesity). Mr Kaltoft is 5’ 6” and weighs 160kg (a BMI of 54).
Along with other questions which were rejected, the Danish Court asked whether obesity could be a disability within the meaning of anti-discrimination laws. In short, the Advocate General answered yes, it could.
In European Law there is a six stage test to determine if someone is disabled (which is largely mirrored in UK law in the Equality Act 2010). Their condition must be:
The Advocate General decided that obesity can fit in this category but will not do so automatically; it will only become a disability if the criteria above are satisfied.
To employment lawyers this case is not hugely surprising and is a logical application of the existing law. It is important to understand that in law, a ‘disability’ does not just mean a diagnosis. This has two elements; a diagnosed condition does not mean someone is automatically ‘disabled’ in employment law, but equally an employee does not have to be formally diagnosed to be considered ‘disabled’.
For those of you thinking “Mr Kaltoft brought this on himself” as an argument against this case, the Advocate General gave an example of a sportsperson or a risky driver becoming injured. Because they accepted any risk, should they be considered disabled or not?
Discrimination in employment law is complicated and can result in potentially costly claims for employers. It is important to take legal advice on the employment rights disabled people have at the earliest possible opportunity.
If you have a query regarding employment law either as an employee or employer please contact us on 01392 344800 or use the contact us page.