In the end, the Advocate General reached the inevitable conclusion – that obesity by itself is not automatically a disability, but can be if and when it “hinders full participation in professional life on an equal footing with other employees”, or (translated into the UK Equality Act’s definition) has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities.
Kirsten Kaltoft worked as a child minder for a Danish council and had done so for fifteen years up to his dismissal, ostensibly for redundancy, in 2010. He claimed that his dismissal (or at least his selection for redundancy) was on the grounds of his obesity, that obesity should be treated as a disability and therefore that he had potentially been discriminated against on disability grounds.
Mr Kaltoft never in all his time with the council weighed less than 160 kilos, 25 stone in old UK money, and had a body mass index of 54. Europe uses a BMI of 30 as the gateway to clinical obesity. My rough calculations suggest that to fall below a BMI of 30 at that weight, Mr Kaltoft would have to have been at least 17 feet tall, which could well have created its own issues on the child-minder front anyway. There was however no mention in his claim of the widely-reported allegations that he was too big to bend down and tie his charges’ shoelaces, and/or to run after them if they escaped the premises. The council denied that these considerations formed any part of the decision to dismiss him.
The Advocate General concluded in his Opinion that where obesity plainly hinders a person’s participation in professional life, this will be a disability for the purposes of the EU Equal Treatment in Employment Directive, and therefore also for the purposes of the Equality Act and other domestic member state legislation implementing the Directive. However, in his opinion, only extreme, severe or morbid obesity (i.e. a BMI over 40) would suffice to create limitations of mobility, endurance or mood etc., plain enough to satisfy that definition. As something like one in four UK adults has a BMI of over 30, any other finding could have had dramatic consequences for the obligations of employers towards their more comfortably-upholstered employees. The clear (though technically not yet binding) steer towards 40 will essentially limit the effect of this Opinion to those whose weight would already have led most employers to consider the question of disability anyway.
Two other points come out of this Opinion:
i) The Advocate General said that the cause of the obesity was immaterial. A glance at the comments on any obesity-related website will show a vicious division between those who put it down to genetics and/or hormonal imbalances and those who mostly blame cake. This debate is irrelevant to the issue of whether a person is statutorily disabled and of the employer’s consequent obligations towards him.
ii) There are decent arguments that the BMI cut-off at 40 should not stand – if someone with a BMI of 39 was suffering the same limitations of mobility and mood, etc., it is not likely that a court or tribunal would disqualify him on that basis.