THE GUARDIAN 11.06.2014

An overweight Danish childminder, said to be unable to bend down to tie up shoelaces, may make legal history this week by calling for employers across Europe to treat obesity as a disability.

The discrimination case brought by Karsten Kaltoft against his local authority will be heard by the European court of justice in Luxembourg on Thursday and could set a far-reaching precedent across all EU states.

Kaltoft, who weighed more than 158kg (25st) at the time, was sacked by the council, Billund Kommune, because it deemed that he could not perform his duties due to his size, citing the fact that he required help from a colleague to tie up children’s shoelaces. The Danish courts referred the issue to the ECJ.

If successful in redefining obesity as a disability, Kaltoft’s lawyers could force widespread changes in the way employers deal with staff and what support – for example, reserved parking – they might be required to provide.

The court, whose rulings are binding throughout the EU, will have to decide whether it is legitimate to discriminate on the grounds of obesity and whether the burden of proof in any future cases should be on the employer or employee. The ECJ will also consider whether, if there is a duty to prevent discrimination against those suffering from obesity, it applies just to the public sector or across the whole labour market.

Audrey Williams, head of discrimination at the London law firm Eversheds, said: “The impact could prove significant for employers, particularly those in the UK which continues to reveal the highest percentages of obesity in Europe.” In the UK, 64% of adults are classified as being overweight or obese.

“Discrimination law in the UK, the Equality Act 2010, has been interpreted as protecting physical and mental conditions which result from obesity, to the extent they meet specified criteria in terms of their nature, effect and duration,” said Williams. “Obesity itself has been rejected by the UK courts as a disability in its own right. If the European court reaches a contrary conclusion, the Equality Act would need to be applied very differently.

“Obesity, however it will come to be defined, would need to be approached just like any other physical or mental impairment, preventing an employer from treating an employee less favourably because of their weight, not because of consequential medical problems. This would include the ability to dismiss.

“The primary change, however, would almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. For example, access to the office may be an issue, requiring review of where the employee is located and their seating arrangements. Might obese employees need to receive preferential access to car parking, for example?”

In the USA, several recent cases have resulted in dismissed workers successfully claiming they were discriminated against for being obese. In one case, a worker in Texas who weighed more than 305kg (48st) received $55,000 (£32,800) in compensation for losing his job.

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