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Advocate General expresses to CJEU that obesity can be a disability

29th July, 2014

The increasingly common issue in modern society of obesity has been placed before the courts once again, this time in the case of Kaltoft v The Municipality of Billund Case C 354/13.

We should firstly go back to last year when the Employment Appeal Tribunal refused to accept obesity as a disability in its own right, but stated that it may increase the likelihood of someone being considered disabled.

In the current case, an Advocate General has now given an opinion to a similar effect

Whilst the opinion does initially confirm that obesity is not a protected characteristic defined by the Equality Act 2010, it goes on to consider whether obesity alone could be considered a disability in some circumstances.

The Advocate General considers that in cases where the individual’s obesity is so severe that it hinders their full participation in professional life due to physical and/or psychological limitations, that individual can be considered to have a disability.

It is extremely important to consider the Advocate General’s choice of words in this opinion. By stating that obesity can be considered a disability (as opposed to must), the Advocate General appears to be maintaining, for the time being at least, that obesity is not automatically a disability.

It will now be for the CJEU to give its judgment on this case. Usually Advocate General opinions are followed, but we will have to wait several months for the final decision.

In the meantime, we would recommend a review of the reasonable adjustments made in your workplace, or the reasonable adjustments which you think you may be entitled to. If the Advocate General’s opinion is followed, it may lead to a duty on employers to make additional reasonable adjustments for their employees. In terms of obesity, this could include providing larger chairs and duties which involve less mobility.

For further information and advice in relation to disability, please contact Helen Watson on 01244 405565 or send an email to [email protected].

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