Obesity and the Equality Act 2010

Earlier this month, the Court of Justice of the European Union (“CJEU”) started to hear a case referred from Denmark on the issue of obesity (Kaltoft).

The Court has been tasked with determining whether discrimination based upon someone’s obesity, should be protected under the Equality Act in the same way that other protected characteristics such as age and race are.

In short, the Court will decide whether obesity can amount to a ‘disability’, which is one of the protected characteristics upon which discriminatory treatment is unlawful.

Previously, the UK case of Walker v Sita Information Networking Copmputing Ltd had found that whilst obesity alone is unlikely to render an individual disabled for the purposes of the Equality Act, the mere fact that person was obese is more likely to render them disabled and therefore, protected under the relevant legislation.

Obesity would therefore often be seen as the cause of the disability (the impairment protected by legislation), as opposed to the disability itself.

In the case itself, Mr Kaltoft was a child minder and was dismissed as a result of not being able to carry out his role with a local authority.

An Opinion from the Advocate General is expected to be given in mid-July, with the judgment itself due some months later. Should it ultimately be decided that obesity can amount to a disability, the impact on employers is that a much greater proportion of the workforce are likely to be covered by the Equality Act.

These individuals, as well as obese applicants applying for jobs, would have much greater scope to bring discrimination claims by virtue of their ‘disability’, and to have reasonable adjustments implemented to their roles.

Given the potentially far-reaching consequences of this decision, employers should keep a look out in future Bulletin articles for an update on the position, or speak to their Irwin Mitchell contact to discuss any specific concerns in the meantime.