© AP File photo of an overweight person eating in London
Obesity can in severe cases constitute a disability, a European Union court has ruled, establishing a precedent that could affect employment rights across the continent.
But the decision by the EU's court of justice in Luxembourg - ruling on the case of a Danish childminder who lost his job - stopped short of declaring obesity to be a protected characteristic against which all discrimination is prohibited.
The complex reasoning did not even resolve the case in dispute: a claim by Karsten Kaltoft, who was dismissed by his local city council in 2010 after reportedly being too large to bend down to tie up shoelaces. The Luxembourg court referred it back to a Danish court to determine whether Kaltoft's obesity falls within the definition of disability.
The judgment will be carefully examined by employment lawyers as decisions by the ECJ are binding across the European Union.
In its decision, the court said: "While no general principle of EU law prohibits, in itself, discrimination on grounds of obesity, that condition falls within the concept of 'disability' where, under particular conditions, it hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.
"...Such would be the case, in particular, if the obesity of the worker hindered that participation on account of reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity."
The court had heard that Kaltoft weighed more than 160kg (25st). His lawyers argued that his weight was one of the reasons he lost his job and that it amounted to unfair discrimination. His employer, Billund city council, has denied that obesity was among the reasons for Kaltoft's dismissal. He had worked as a childminder for 15 years and had a Body Mass Index (BMI) of 54, the court was told.
Naeema Choudry, partner at law firm Eversheds, said: "Today's decision clarifies that, under the European Equal Treatment Framework Directive, obesity is not always a disability per se, but it is a condition which can give rise to discrimination protection.
"Each case must be looked at on its own merits to determine the presence of long term mental or physical impairments. Whilst obesity is likely to increase exposure to such impediments, therefore, the effect of individual obesity is the critical question, not the degree of obesity."
Vanessa Di Cuffa, employment law partner at Shakespeares, said: "This is the right decision. Although previous legislation allowed for employees to be protected against other forms of discrimination, it is positive that obesity is now being seriously recognised. Previously, severely obese staff could only seek for suitable workplace provisions to be made under associated conditions such as diabetes, respiratory problems or mobility impairment.
"Employers should continue to promote healthy lifestyles and extend support to workers who are actively trying to reduce their weight. It is right that the EU has moved forward with enshrining this into law. However, employers must continue to, or start, providing appropriate support to staff with obesity issues at any level."
Julian Hemming, employment partner at the law firm Osborne Clarke, said: "This ruling is a real problem for employers - it's still not clear enough for them to be sure that they're going to be on the right side of the law. While the ECJ does not consider obesity a disability in itself, businesses could still face discrimination claims from obese staff if their weight problem is of such a degree that they fall within the definition of having a 'disability' in the legislation."