News that the European Court of Justice in Luxembourg has ruled in favour of obesity (or as it is often termed "being severely overweight") being potentially viewed as a "disability" if it has an affect on a person's ability to work, looks certain to add further to the minefield of employment law. The judgement did not propose that being overweight constituted a disability per se, but it instead recognised that there should be protection in place to avoid the potential for long-term damage through being obese.

The generally accepted criteria for being classified as ‘overweight’ is having a body mass index of over 30. The BMI index (or Quetelet index as it is can alternatively be called) applies to both adult men and women, and ensures that it is not simply a matter of being over a certain arbitrary weight, as it ensures a ‘truer’ measure is used with consideration of body fat depending on height and weight.

Karsten Kaltoft’s groundbreaking case in Denmark has resulted in the ruling, the latest outcome of the 25-stone former childminder’s appeal against his dismissal from his job with Billund city council after fifteen years’ service. Perceived issues arose as his size grew over the years and such basic tasks as bending down to tie a child’s shoelaces were alleged to have become beyond him, a challenge that he has subsequently denied. In response, his former employer claimed that he was dismissed because there was no longer sufficient work to justify maintaining his employment. The ruling by the EU was a result of the referral by the Danish courts to them, so it remains to be seen whether Mr Kaltoft’s case will actually be deemed to satisfy the requisite criteria.

Already (as some might suggest) "burdened" with a plethora of laws and rulings that have to be adhered to and considered when employing or dismissing employees, the likelihood is that the complexities will now increase. That could be viewed as being necessary if there is to be no prejudice when it comes to consideration of the rights of individuals to a "fair chance" in the workplace, but must already be music to the ears of the legal system as they see another opportunity to use the "wrongful dismissal" card (in their clients' favour of course!). Stand by for specialists in the area springing up and putting forward their credentials for representing individuals in cases, where it could be argued that dismissal was down to being overweight. 

With employers already duty bound to bear gender, race and other forms of disability as no barrier to employment, they can now add obesity to the equation. The potential for calls of unfair dismissal (or even non employment in the first place) would seem bountiful and the likelihood of a blurring of what is good business practice against what could be classed as unfair discrimination seems inevitable.

It also potentially sends out something of a mixed message in the UK, where much of the government's current thinking seems to be towards "nudging" the general populus towards a more healthy lifestyle, if they are then forced to accede to an EU dictate that says that obesity should be classed as a disability after all. GPs will also have to be careful when discussing perceived weight problems with patients to not be seen as being discriminatory in their advice.

Could there be ‘ripple effects’ in terms of additions to the criteria for being granted Disability Allowance for people who it is deemed can not work due to being overweight? Will employers have to cater for staff who become overweight while in the employ of a company or who join a company overweight in the first place, by allowance in the set up of the workplace (such as for wheelchair users or people who are certified as being blind) ?

What about employees who are dismissed when an overweight person remains in their job in the same role, as the potential for recriminations and counter appeals in terms of ‘positive’ discrimination (or discriminating in favour of someone because they have a disability, with no consideration for their actual abilities to do the role in the first place to a requisite level) would seem possible. It would seem to be a potential ‘minefield’ and seems certain to lead to further discussion over the months and years to come.
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