The Advocate General’s opinion will now be referred to the European Court of Justice (“ECJ”) to issue its judgment in the case. This is likely to be issued in the next 4 – 6 months. Usually, the ECJ follow the Advocate General’s opinion but it is not always the case.
If the opinion is followed an employee whose obesity significantly impacts on their ability to participate in work either due to physical or psychological limitations will be protected under discrimination legislation. Employers may also be under a duty to consider reasonable adjustments if the employee is put at a substantial disadvantage in comparison with other employees, due to a provision, criterion or practice required by the employer.
Mr Kaltoft was employed as a child minder by The Municipality of Billund; his employment was terminated in 2010. He then brought a claim in the Danish courts alleging that his dismissal was due to his obesity and that this amounted to unlawful discrimination.
The facts of the case are disputed by the parties, however, it is accepted that the employer was concerned about Mr Kaltoft’s health as a result of his obesity and this was discussed in meetings with him. They also paid for him to undertake fitness courses to try to combat the issue. However, the employer denies this formed part of the considerations on termination.
The Danish court made a reference to the ECJ to determine whether obesity is protected under the equal treatment framework.
The Advocate General’s opinion concludes that this could be the case where the obesity is severe, so where body mass index is over 40, and it hinders an employee in carrying out their job or participating in working life. The Advocate General rejected the argument that there was a freestanding prohibition of discrimination on the grounds of obesity.
Alex Payton comments: “This case will be of concern to employers as it is extending the scope of discrimination protection. If an employee can establish that the impact of their obesity is such that it amounts to a disability not only will they be protected from discrimination but employers may also have a duty to make reasonable adjustments which could include the provision of specialist equipment, the cost of which would have to be met by the employer.”