Yesterday, the European Court of Justice issued its judgement in the case of Karsten Kaltoft, a 5ft 7in child minder from Denmark who, in his 15 years in that role, has never weighed less than 25 stone.
Mr Kaltoft’s employment was terminated, and he felt that it was on the grounds of his obesity.
The European Court of Justice was asked to rule on two key questions: First, is it unlawful to discriminate against someone on the grounds that they are obese? Second, can obesity amount to a disability, which it is unlawful to discriminate against?
The Court’s decision is a good news bad news story for employers. The good news is the Court clearly stated that obesity on its own is not a condition protected by anti-discrimination laws. Someone is not protected from discrimination simply because they are obese.
What could be discrimination? Deliberately not employing someone, sacking someone, making it harder for someone to do their job etc.
However, the bad news for employers is that the Court decided that there is no reason that obesity cannot amount to a disability. People with disabilities are protected from discrimination connected with their disability.
Earlier in the year the Court’s Advocate General issued a non-binding opinion which said that someone with mild obesity would not qualify as disabled, but that only someone with “severe, extreme or morbid obesity” would be likely to qualify as disabled for the purposes of discrimination protection.
The Court yesterday chose not to mention the distinction between mild and severe obesity. Instead they simply said that if a person’s long term obesity makes it harder for them to take a full and equal part in their work, then it can be a disability.
Where does that leave employers, particularly in the oil and gas sector? There may be some low level issues, such as giving the obese a parking spot closer to the office, or a work station on the ground floor, or closer to an emergency exit. But I suspect that the bigger areas of concern are going to relate to health and safety.
In my view the biggest change for employers will be the extra work they have to do when considering any policies which affect the obese. These could be banning them from offshore work, or transport by helicopter, or giving them strenuous jobs which come with health risks for them as opposed to someone not obese.
Until yesterday, the effect on the obese employee did not need to be taken into account. Now it does. I think that employers are now going to have to be able to properly justify the actions they want to take in relation to obese employees. I have little doubt that proper health and safety concerns will be taken to be “legitimate aims”, which can justify discrimination against the obese. The problem for employers is going to be making sure that the choices employers make are the most reasonable way of achieving those aims.
That might mean buying equipment suitable for obese employees instead of sacking them for being unable to use existing equipment. It might mean helping them to lose weight instead of denying them a position that requires some one more mobile.
Ultimately the decision is likely to mean that employers with health and safety concerns about obese employees can no longer taken the “easy” way out of dismissing or excluding the obese.
They will now have to take the harder route, which will inevitably involve spending more money, of assessing the impact on the obese and exploring all other options available to them.
Neil Fraser is a partner at Aberdein Considine and specialises in Employment Law