22 July 2014

Obesity may be considered a handicap

In a recommendation to the European Court of Justice, the Advocate-General suggests that the court rejects that a general principle of prohibition against discrimination is to apply, and that the court accepts that obesity may be considered a handicap.

In a Danish case, the European Court of Justice was asked whether an employee's obesity, which may have been the reason for the dismissal of the employee, may form the basis of protection indicating a general principle of non-discrimination on the labour market, or whether obesity may be considered covered by the special protection of handicapped persons under the Danish Non-Discrimination Act.

The specific case concerned a municipal child-minder, who was dismissed after 15 years' employment. It was much discussed whether the child-minder had been dismissed due to a declining birth-rate and/or due to her physical condition. The child-minder weighed 160 kg and had a BMI of 54.

THE HANDICAP CONCEPT IS BEING DEVELOPED

The Advocate-General's recommendation to the court contains an analysis of whether a principle of non-discrimination due to the Charter of Fundamental Rights of the European Union generally applies. The Advocate-General determines that such fundamental principle in relation to obesity does not apply according EU law.

In relation to the handicap concept, including whether obesity may be considered a handicap, the Advocate-General states like the European Court of Justice's previous rulings that the concept may i.a. be defined based on the UN Handicap Convention, that the concept is being developed, and that the concept is not solely a (purely) medical concept, but that a social assessment is also to be taken into account, in particular whether the handicap results in a barrier in relation to the person's professional life.

OBESITY MAY BE CONSIDERED A HANDICAP IF THE BMI IS OVER 40

The Advocate-General attaches importance to the fact that the WHO defines obesity involving a BMI over 40 as being severe, extreme or obsessive, and in these situations, the Advocate-General finds that obesity may be considered a handicap. The Advocate-General also attaches importance to the fact that in case of a BMI over 40, the obesity "has reached such a level that it - in interaction with barriers in terms of the surrounding's opinion - prevents full and efficient participation in the professional life on equal terms with other workers due to the physical and/or mental limitation as a consequence of the obesity. In such situations, obesity may be considered a handicap".

The Advocate-General suggest that the European Court of Justice leaves it to the Danish court to establish whether these conditions are fulfilled.

THERE MUST BE A CONNECTION BETWEEN THE MEDICAL AND WORK-RELATED LIMITATIONS

It is, of course, important to note that the Advocate-General's suggestion is only an indication in which direction the European Court of Justice will go in relation to obesity.

The Advocate-General's statement shows that there must be a connection between the medical limitation and the specific consequences in relation to the social and professional life.

This means that it is not sufficient to rely on a handicap without this being of relevant importance for the performance of the work. On the other hand, this connection overlaps to some extent as, when assessing the medical limitation, regard will be had to whether it has actually caused problems at the workplace, which may again mean that it is in fact a handicap.

The final decision of the European Court of Justice in this case is keenly awaited but, until then, it will be wise to consider severe obesity as covered by the handicap concept of the Non-Discrimination Act with the specific adaptation obligation to be observed by the employer.

The case has attracted attention in Europe, in particular in the UK, where several media from the BBC to the highly respected The Guardian to the tabloid The Daily Mail have written about the case.

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