There has been a flurry of press coverage about a recent Danish case (Kaltoft v The Municipality of Billund), which considers whether, under European law, obesity can be classed as a disability and whether people with obesity should be protected from discrimination.

The case is being heard by the Court of Justice of the European Union, and the Advocate General has provided an opinion for the Court to consider in due course. The Advocate General has said that whilst obesity in itself is not a disability and there is no general principle which prohibits discrimination on the grounds of obesity, the effects of obesity may result in an individual being disabled and therefore protected.

This is consistent with the position under UK law. In the UK, to be classed as a disabled person under the Equality Act 2010, and therefore benefit from protection against disability discrimination, an individual must have a condition which has lasted or is likely to last at least 12 months, and has a substantial impact on their normal day to day activities. For example, a person suffering from obesity may have severe and long term mobility difficulties which impact on their ability to walk certain distances or climb stairs.

A number of comments have been made that obesity should not be classed as a disability as it is self-inflicted. However, as the law currently stands, it is irrelevant whether obesity is self-inflicted due to, for example, the voluntary and excessive intake of food. It is also worth bearing in mind that there are a number of factors which could lead to excessive eating, for example if a person is suffering from depression. In addition, obesity could be an involuntary and physical consequence of another medical condition (which may itself be a disability).

If an employee is disabled under the Equality Act 2010, and if that person is at a disadvantage in the workplace as a result, then that can trigger a duty on the employer to make reasonable adjustments. For example, this could involve allowing additional breaks for a person with obesity (which qualifies as a disability) where the job involves shop floor work and standing and moving for significant periods of time.

Click here if you wish to hear Giles Woolfson on Radio Scotland speaking about this issue with Kaye Adams (scroll to 1 hour and 2 mins):

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