Posted on 29th September 2015

Last month on a flight to Zurich my neighbour in flight required more than her own seat to accommodate her vast frame and I watched in horror as the debate began (in front of passengers) between her and the stewardess about whether she should have purchased two seats. As a nation we are getting fatter. There can be no arguing with that. Lately the subject of our size seems to get regular press coverage. But only in the US do anti-discrimination laws extend to protect the obese. Very fat people have no protection under UK equality laws either in the workplace or when it comes to the supply of services. Or so we all thought…

Kaltoft v Bilund Kommune 2014 EUECJ C354 is a Dutch case involving a grossly overweight employee who worked with children. He was so fat he could not bend down to tie the children’s shoelaces. He complained when he was dismissed for not being able to do parts of his job. The CJEU were asked to determine the extent to which European Equality laws offered protection in such circumstances. The ruling of the AG was to the effect that where obesity imposes physical or psychological limitations on what a person can do it might be considered a disability. If a disability – then there is anti discrimination protection. This is not the same as saying obesity is a disability but it is a step towards that proposition.

The Advocate General of the ECJ issued an Opinion (much like a “hint” to the judges) saying that disability covers the situation when a physical or mental condition makes “carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing” … and that “…cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers … plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability”.

A question about the extent to which European law prevents or offers anti-discrimination protection for the obese was raised by the Danish Court.

Written by Richard Hignett, Employment Barrister at No5 Chambers.