Written by Martin Pratt
A recent European Court of Justice decision confirmed that there is no prohibition in EU law on an employer discriminating against an employee because they are obese. However, an employee will be protected from discrimination if their obesity amounts to a disability.
Disability is defined in the EU’s Equal Treatment Directive (Directive) as a limitation which results from long-term physical, mental or psychological impairments, which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.
An obese employee may fall within this concept of disability if their obesity hinders their participation in professional activity. For example, if the employee’s obesity causes them to have reduced mobility, or if their obesity leads to the onset of medical conditions preventing them from carrying out work, or causing discomfort when exercising professional activity.
The EU’s Advocate General set out their view that only severe, extreme or morbid obesity (known as “class 3 obesity”) would likely create the necessary limitations to amount to a disability for the purposes of the Directive. However, the ECJ did not elaborate further on this point. Therefore, each case will depend on its own facts.
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I am a partner in the employment law team and represent both individuals and employers, but specialise in acting for professionals such as public company directors, lawyers, hedge fund managers, accountants, MDs in investments banks, private equity principals and tech entrepreneurs, both as individuals leaving old employers and setting up or joining new enterprises. I advise senior individuals on new employment contracts and joining LLPs. On the employer side my expertise covers the employment aspects of mergers, acquisitions and outsourcing. My varied employer client base includes professional services firms, hedge funds, publishers, marketing agencies, charities, fitness studios and medical practices. I represent clients in all types of employment related disputes, involving matters like whistleblowing, discrimination, bonus claims, harassment, TUPE, High Court injunctions and unfair dismissal.