
We have an overweight employee whose obesity is preventing them from undertaking the full functions of their role and it is having a knock on effect for their co-workers. How do I handle it?
In this article David McCarroll, Partner with Ronan Daly Jermyn’s Employment Law Unit tackles the circumstances of when an employer can dismiss an employee on the grounds of their obesity.
This is actually an issue that has been the subject of a very recent judgment of the Court of Justice of the European Union (Case C-354/13, 18th of December 2014, FOA -v- KL). Those proceedings were taken by a Union (FOA) against a municipality in Denmark on behalf of their employee Mr. Karsten Kaltoft.
Mr. Kaltoft was employed by a Danish Public Authority since November 1996 up until his dismissal in November 2010. He was hired as a child-minder to take care of children in his home and it was common case between the parties in these proceedings that for the entire period during his employment he was obese as defined by the World Health Organisation.
It was noted by the Court that Mr. Kaltoft had made attempts to lose weight and that his employer, as part of its health policy, had provided him financial assistance at various times in order for him to attend fitness and physical training sessions but he had subsequently regained the weight.
In March 2010 Mr. Kaltoft resumed his work as a child-minder, having taken a year off due to family reasons and he claims to have received a series of unexpected visits from his Managers making various enquiries in relation to his weight loss.
Towards the end of 2010 a senior directive issued to Mr. Kaltoft’s line managers to reduce the number of child-minders by one and Mr. Kaltoft was selected as the individual to be dismissed. He was informed by his employer by telephone in November 2010 of their intention to dismiss him and it was also accepted by all parties that there was a meeting on the same day where there was a reference made to Mr. Kaltoft’s obesity (although exactly what was said and what was meant was disputed).
There followed an exchange of correspondence with the employer first outlining that this dismissal was taking place ‘following a specific assessment on the basis of a decline in the number of children, thus that of the workload, having severe financial implications on the child-minding service and on its organisation’. Mr. Kaltoft responded expressing his view that his dismissal was motivated by his obesity. By response, his employer merely reiterated the same premise for his dismissal and made no comment in relation to obesity.
A claim was brought to the local Danish District Court with Mr. Kaltoft claiming to have been discriminated against on the basis of obesity, seeking compensation for discrimination. The District Court duly referred a series of queries to the Court of Justice of the European Union concerning how they should interpret the underlying EU Directive (2000/78).
Firstly the CJEU was asked whether EU law must be interpreted as laying down a general principal of non-discrimination on grounds of obesity.
Interestingly, the Court responded by determining that the Directive does not mention obesity as a ground of discrimination and that the Directive should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively within the Directive. Obesity cannot, as such, be regarded as a ground in addition to those which are already listed. That being the case, EU law does not lay down a general principle of non-discrimination on grounds of obesity, as such, as regards employment and occupation.
But...
The other substantive question the Court then had to tackle was whether or not the obesity of a worker could constitute a ‘disability’ within the meaning of that term under the Directive and, if so, what are the criteria which decide whether an obese worker may avail of the protection afforded by the Directive against disability based discrimination.
In addressing that matter the Court referred to previous case law which had already established that the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.
The Court went on to state that the concept of a disability must be understood as ‘referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity’. Furthermore, the concept of a disability ‘does not depend on the extent to which the person may or may not have contributed to the onset of his disability’.
Importantly, the Court also went on to point out that the definition of ‘disability’ must come for consideration before the determination and assessment of the “appropriate accommodation measures”. Those measures are intended to accommodate the needs of disabled persons and are therefore the consequence, not the constituent element, of the concept of disability. With regard to Mr. Kaltoft, the Court pointed out that ‘the mere fact that such an accommodation measure may not have been taken... does not mean that he could not be a disabled person within the meaning of the Directive’.
The Court were somewhat reserved in relation to their consideration of obesity as a disability. They restated the position that obesity does not itself constitute a disability, stating that “by its nature, it does not necessarily entail the existence of a limitation resulting from long term physical, mental or psychological impairments that hinder full and effective participation in employment”.
However, whilst obesity does not benefit from a blanket absolute inclusion within the definition of disability, the Court went on to state that ‘under given circumstances’ if obesity did impair the employee’s full and effective participation in employment in the long-term, it could be covered by the concept of disability.
The Court gave the example of a scenario where an obese worker was hindered from full an effective participation in employment on account of reduced mobility or the onset of medical conditions preventing that employee from carrying out their profession activity.
In a sense, the judgment appears to confirm that obesity is not automatically included with the definition of disability and that a case must be assessed in light of its particular circumstances and in particular the long-term effect of any limitation and impairment on that worker from participating in their employment.
With regard specifically to Mr. Kaltoft, it was noted that he was obese for the entire period of his employment, which is thus a ‘long period’. The Court stated that it was for the local Danish District Court to ascertain whether his obesity limited his full or effective participation in work. If the local Court determined that it did come within the definition of disability, then Mr. Kaltoft has to have made a prima facia link to his disability and his dismissal. It is then for the employer to prove that there has been no discriminatory breach.
In summary, the Court have in fact merely treated the condition of obesity in the same way any other condition be assessed. In other words, the manner in which disability is considered by the Courts under the Employment Equality Legislation (and its overriding EU Directive) requires that consideration must be given to the effect of the condition and not just the existence of the condition.
Does obesity have the effect of limiting the employee’s full and effective participation in the workplace? If it does, then it can come within the definition of disability and the usual obligations as regards reasonable accommodation apply.
One would have to assume that when the matter reverts back to the local Danish District Court, that the employer will find themselves in some difficulty given the fact that there had been various references and criticisms of Mr. Kaltoft’s weight and given the apparent lack of consideration given to selecting any other employee for dismissal.
However, there is nothing within the judgment that would prevent the dismissal of an obese employee where the employer could demonstrate that the condition prevented full and effective participation of that person in their employment and where they could demonstrate that they had considered and sought to implement special measures to accommodate that individual back to work prior to the dismissal taking effect.
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