Europe: ECJ rules that obese employees may be disabled

In a decision on 18 December 2014[1], the European Court of Justice (ECJ) has recognised that obesity can, in certain circumstances, entail limitations amounting to a disability for the purposes of the European Directive 2000/78 establishing a general framework for equal treatment in employment and occupation.

The ECJ found that obesity could indeed involve a disability if it "entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one".  However, obesity in itself is not a disability;  the focus is on its effects.

The ECJ gave as examples of such limitations reduced mobility or the onset of medical conditions preventing an employee from carrying out his work or causing discomfort when carrying out his professional activity.

The ECJ expressly also stated that it is irrelevant if the employee has contributed to the onset of the disability.

The ruling will be relevant to all EU Member States.  It largely follows the Advocate General's opinion (see the blog summary here), although it did not comment on the Advocate General's suggestion that “most probably” only employees with a BMI of over 40 (morbidly or severely obese) would have sufficient limitations to qualify as disabled. 

France

The decision is immediately binding on employers in France.  An employee dismissed on grounds connected with his or her obesity may therefore, in certain circumstances, be held to have been unlawfully dismissed on the basis of a discriminatory ground, rendering the dismissal null and void, which will result in the reintegration of the employee (and the payment of back pay since the dismissal date up to reintegration). Employers will of course be prohibited from discriminating on the grounds of qualifying cases of obesity during the term of the employment (e.g. in terms of decisions on remuneration, promotion etc.).

As a reminder, other discriminatory grounds for dismissals in France include[2] : racial origin, sex, morals, sexual orientation or identity, age, family situation, pregnancy or maternity, genetic characteristics, belonging (or appearing to belong) to an ethnic group, nation or race, political opinions, trade union activities, religious convictions, physical appearance, family name, or the state of health or a handicap. Place of residence was included recently as a discriminatory ground under French law, under the law of 21 February 2014.

UK

The ruling reflects the approach taken by the Employment Appeal Tribunal in Walker v SITA in 2013. However, the publicity surrounding this case (concerning a childminder allegedly dismissed due to his obesity preventing him from carrying out his duties, such as bending down to tie children’s shoelaces) may mean employers face an increase in claims. Obese employees and job applicants may claim discrimination or harassment, or contend that an employer has a duty to make reasonable adjustments such as larger office furniture or work equipment, preferential parking arrangements, or changes to duties or work location to accommodate reduced mobility.

[1] 18 December 2014 n° C-354/13

[2] article L. 1132-1 of the French Labour Code