Last month I reported the case of Mr Kaltoft, a Danish childminder who was dismissed because he was too big to carry out some of his duties, e.g. tying children’s shoelaces.
We now have the Opinion of the Advocate General of the European Court concerning the issues raised in the case. Although this is not the judgment itself, such opinions are nearly always followed by the Court.
The key conclusion is that obesity is not of itself a disability and therefore protection from discrimination is not available on this basis alone. However, as is so often the case with European decisions and particularly those concerning employment law, that is not the end of the story.
Advocate General Jaaskinen includes in his Opinion a discussion about body mass index (BMI) which opens the door to the possibility that obesity may be treated as a disability and thereby attract protection from discrimination. In essence he suggests that a person with BMI of over 40 is likely to have problems which hinder his or her “full participation in professional life on an equal footing with other employees due to the physical and or psychological limitations that it entails” in which case obesity “can be considered to be a disability”.
Incidentally, having a BMI of over 40 is what is commonly referred to in the United Kingdom as being morbidly obese. There is a handy BMI calculator (based on height and weight) at the BUPA website (free of charge!).
Of course this opens up the question of where to draw the (waist)line! Is someone with a BMI of 39.5 not disabled and someone with 40.5 disabled? I can see room for a great deal of litigation in this regard. Further the Opinion of the Advocate General is precisely that, an opinion, and not a medical one at that. What if a medical expert expresses the view that someone with a BMI of, say, 35 nonetheless suffers from the characteristics identified as establishing disability.Details