• Last month we were featured in the publication, HR Zone, reporting on a European case involving a Danish Child-minder who alleges unfairly dismissal and discrimination due to his obesity. The European Court was asked for clarification as to whether current EU law can be interpreted to include obesity as a disability.

    Although we are still awaiting a final ruling from the European Court of Justice (ECJ), the Advocate General has this week given the opinion that obesity may amount to a disability for the purposes of the European law if it is “severe”. The Advocate General has indicated that it is “most probably” only individuals with a body mass index (BMI) of 40 or more who would be hindered from participating in professional life to such an extent as to amount to a disability.

    Under the World Health Organisation (WHO) guidelines, Mr Kaltoft, with a BMI of 54, is classed as class III obese, with “severe, extreme or morbid obesity”.

    When giving his opinion, the Advocate General said that there is no fundamental principle of European law which prohibits discrimination on the grounds of obesity as such. As to whether or not obesity amounts to a disability, the Advocate General stated that the obesity must have reached such a degree that it plainly hinders full participation in professional life. Class I obesity under the WHO guidelines (a BMI of 30 to 34.9) is insufficient to fulfil the criteria in ECJ case law, whereas class III obesity would create such problems in mobility, endurance and mood as to amount to a disability.

    The Advocate General’s opinion is not legally binding, but is taken into account by the court and often gives an indication of the court’s verdict. The court will now consider its decision in the Kaltoft case over the coming weeks.

    We will be keeping an eye out for the ruling and will update you as matters progress. In the meantime, have a look at our previous article, on what you can be doing to take preventative action against any potential claims.

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