MORBID OBESITY MAY AMOUNT TO A DISABILITY

23 Jul

The prevalence of morbid obesity in England is on the increase. A person is said to be morbidly obese where his/her body mass index is greater than 40. Figures published by Public Health England show that between 1993 and 2012, morbid obesity in adult men rose from a prevalence of 0.2% to 1.7%, and in adult women, from 1.4% to 3.1%. One set of data suggest an increase to 3% in men and 6% in women by 2030.

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The prevalence of morbid obesity in England is on the increase. A person is said to be morbidly obese where his/her body mass index is greater than 40. Figures published by Public Health England show that between 1993 and 2012, morbid obesity in adult men rose from a prevalence of 0.2% to 1.7%, and in adult women, from 1.4% to 3.1%. One set of data suggest an increase to 3% in men and 6% in women by 2030.
Against that context comes the preliminary opinion of the advocate general of the ECJ that morbid obesity (as distinct from obesity) may amount to a disability for the purposes of anti-discrimination legislation.
The opinion comes in the case of Mr Kaltoft, a child  minder employed for some 15 years by Billund town council in Denmark. Mr Kaltoft weights 25 stone (or over 160 kg). His BMI is 54. He was dismissed by the council on the ground that he was unable to perform his duties. An example given was that he was unable to bend over to tie up children’s’ shoelaces. Mr Kaltoft argued that he was dismissed because he was morbidly obese and that this amounted to disability discrimination.
The advocate general concluded that there is no general prohibition on discrimination on the ground of obesity. Where, however, obesity reached such a level that it “plainly hinders participation in professional life” then it may amount to a disability. He further concluded that the cause of the disability of morbid obesity is irrelevant. Employers will not be able to rely upon the fact that morbid obesity is the fault of the individual; through, for example, “self-inflicted excessive energy intake” as he phrased it.
Should the ECJ agree (and there is no reason to think that it will not), the effect in the field of employment law  will be significant, most particularly in the area of reasonable adjustments.

Peter Savill

 

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