The EU Court of Justice rules that Obesity may be seen as a Disability

Date 22 dec. 2014
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In a preliminary reference from the Court of Kolding, the European Court of Justice (the “ECJ”) stated on 18 December 2014 that obesity may constitute a disability and may therefore provide the person in question with special protection against termination. However, the ECJ also ruled that obesity in itself does not hinder termination. 

 

The Case in brief

In late 2010, a Danish child-minder was given notice by his employer. The termination was motivated by rationalization, but the employee subsequently felt that the termination was motivated by his obesity and therefore filed a lawsuit through his union FOA. The Court of Kolding submitted a number of preliminary questions, including the interpretation of the disability concept in relation to obesity.


During the proceedings, FOA claimed that obesity should be deemed a disability in the construction of the Danish Act on Prohibition against Discrimination on the Labour Market.

 

The ECJ’s Decision

The ECJ found that neither the EU nor the EDF Treaties provide a general prohibition against discrimination merely on grounds of obesity. In extension, the Court did not find that any principle of anti-discrimination could be held on grounds of obesity in relation to employment and occupation.


At the same time, the ECJ considered whether obesity should be seen as a disability. In this context, the ECJ commented that the concept of disability: “includes a limitation due to factors such as physical, mental or psychological impairments which, in interaction with various barriers, may prevent the person from participating in working life on an equal footing with other employees”. Thus, the concept of disability is to be understood to cover an impossible pursuit of professional activity as well as inconveniences in the exercise of such activity. The ECJ finds that obesity in itself does not constitute a disability as obesity does not imply any limitation as mentioned above.


The ECJ, however, found that obesity in certain circumstances may nevertheless constitute a disability. In the event that obesity limits the participation in working life on an equal footing with others, and the limitation is of a permanent nature, it will be seen as a disability. In this connection, the ECJ emphasized that obesity which causes restrictions to movement or complications that prevent the obese person from performing his or her duties, or which involve inconveniences when performing his or her professional activity, may constitute a disability.

 

Our Assessment

Based on the decision of the ECJ, we may conclude that obesity in itself is not protected under the rules of anti-discrimination. Severe obesity is only protected provided that it has long-term effects such as impaired mobility or complications for the obese employee.


If an employee suffers from complications due to severe obesity, the employer must be aware that there may be a risk that the employee is protected under the rules against discrimination.


Therefore, if an employee suffers from impaired mobility or complications due to severe obesity, the employer should consider which reasonable adjustments to the specific needs of the employee in question would allow the continued employment of the obese employee. Such adjustments could be e.g. employment at reduced hours or the procurement of special equipment.

 

 

If you have any questions or would like additional information regarding the above, please contact Partner Pernille Nørkær (pno@mwblaw.dk) or Trainee Thomas Dahl Sørensen (tds@mwblaw.dk).

 

The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.