The Denmark case
In 2010, Karsten Kaltoft, a Danish childminder, brought an employment law case for unfair dismissal against his employer, a Danish city council. Kaltoft had been working for 15 years looking after children in his own home in Billund, when his employment contract was terminated in 2010. Kaltoft claimed that obesity was part of the reason that he lost his job and that it amounted to unfair dismissal. Billund city council denied the claim.
This case was referred by the Danish courts to Europe for guidance, making it a test case. The European Union Court of Justice was asked to rule on two matters:
i) Does EU law forbid discrimination on the grounds of obesity?; and
ii) Can obesity be considered a disability?
On 17th July 2014, Niilo Jääskinen – the advocate general, who advises the European court in Luxembourg – ruled that EU law does not forbid discrimination on the grounds of obesity but that EU law offers general protection against discrimination on the grounds of disability.
There were two specific judgements given by Niilo Jääskinen, which were of great importance. First, he gave a guide that morbid obesity (officially defined as a BMI of 40+) could be considered a disability. “If obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability,” Jääskinen said. (Kaltoft had a BMI of 54 and one of the work related examples cited in reports about this case was that he was unable to help children tie their shoelaces, although this has been denied by Kaltoft who said that he was able to do all aspects of his job).
Second, Jääskinen dismissed the notion that a “self-inflicted” disability could be any less worthy of protection, saying “the origin of the disability is irrelevant”.
The EU ruling was made on 18th December 2014. The substantial difference between the final ruling and the July position from the advocate general is that the December final ruling did not specify a particular BMI at which disability could be a consideration.
The ruling upheld the advocate general’s view that, in principle, obesity in itself is not a disability – but that if someone had a long-term impairment because of their disability, then they could be protected by disability legislation.
Following this ruling, Kaltoft’s particular case will revert to the Danish courts to decide whether it meets the criteria for disability under the ruling. Interestingly – this case will come down to whether or not there were aspects of Kaltoft’s job that he was unable to undertake. As mentioned above, the initial reporting of this case claimed that Kaltoft was unable to do certain aspects of his job – tie the childrens’ shoe laces.
In this article Kaltoft said that he had no such problems. I heard Kaltoft on the BBC 1pm news on 18th December 2014 saying the same – that he had no problems fulfilling the requirements of his role. This means that he will fail on his disability claim! It will not be his size, per se, that determines the case, but whether or not his size has created a long-term impairment. If it hasn’t, he can’t be protected by disability discrimination law.
The UK law & the consequences of the Danish case
The Equality Act 2010 defines disability as “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal daily activities”.
For as long as the UK is part of Europe we are bound by European employment law judgements. Once Europe has judged a case, it then becomes case law.
I have not yet seen if the “self-inflicted is irrelevant” aspect of Jääskinen’s judgement has been reinforced in the ruling. Assuming that it has been, these are the principles that have been established by the ruling:
1) Morbid obesity will not be a disability in itself, but is someone has a long-term impairment because of their disability, then they could be protected by disability legislation. (There is no BMI guideline for this; it will vary by person, by situation – Christmas for lawyers).
2) Employers will not be allowed to argue that the disability is “self inflicted”. As Jääskinen said “The origin of the disability is irrelevant”.
3) Disability legislation already requires employers to make ‘reasonable’ adjustments for disabled people to be able to participate in the workplace. Examples include: making sure that the workplace is accessible (entrance; canteen; toilets etc); providing hearing/sight impairment support as needed; adjusting chairs/desks/equipment as necessary etc.
The implications of the Danish case are that all European employers will need to make reasonable adjustments for obese people (employees and visitors). This case has wider implications too, as providers of goods and services will also need to make reasonable adjustments.
One of the examples cited by Clive Coleman, the BBC’s legal correspondent, during media discussions today (and here) was that it would probably be considered reasonable for a Premiership football club to be able to offer an obese person two seats, while a small, non-league club, with a few hundred seats would not be obliged to do so.
It wasn’t so long ago that Air France introduced a policy of people needing to pay for two airplane seats if they needed two seats. This ruling would see Air France fall foul of the law if they did not offer a second seat for free!
I used to be a VP for Human Resources. This case is thus the perfect marriage of my past and current lives. I’m going to focus on two interesting points from a human resources point of view:
Is the protected characteristic avoidable?
The big debate in discrimination law has historically been – is the protected characteristic avoidable? Sex and race were the first attributes to fall under discrimination protection because it was held that someone could not change their gender or race and therefore to judge someone for something they could not change was unfair. Interestingly, we can now change gender and we have since protected gender change under discrimination law.
The debate that preceded sexual orientation and religion being added to “protected attributes” centred around – were these choices or characteristics that someone could do nothing about. The debate that preceded age was one of the most interesting. It must be a fact that we can do nothing about the age we are – we can’t ‘help’ being 18 any more than we can ‘help’ being 80. However, age is an interesting one because it is the only protected attribute that every one of us will experience. If we live long enough, we will be 18 and 80 and every age in between. It was the first protection, therefore, for everyone, but applying differently at different times of our lives. The law says we should no more be excluded from a job because we are 18 than if we are 80. If we can do the job, we should be given the same opportunity as anyone of any other age.
The Jääskinen judgement was most interesting for his comments about the origin of the disability. By stating that “self-inflicted” is no defence for an employer (or provider of goods and services), Jääskinen pre-empted this ‘avoidable or not’ debate for obesity. He effectively declared irrelevant the debate about whether or not the condition is avoidable.
Can the person do the job?
The second, even more interesting, point for me is that discrimination legislation has always been about discrimination. That sounds obvious, but it’s a critical point – let me explain… Discrimination legislation has protected against prejudice. It has protected someone from not being given the same opportunity and treatment because of some protected characteristic e.g. a person not being given a job because of their race; gay men not being able to stay at a Christian B&B etc (the latter is doubly problematic as both religion and sexual orientation are protected, so which protection trumps the other?)
In every aspect of discrimination legislation to date, the ability to do the job has been the founding principle. Indeed discrimination can only be found where the ability to do the job is not in question. A white person applies for a job and gets an interview; an Asian person with the same qualifications applies for the job and doesn’t get an interview – that’s discrimination. If the Asian person is not qualified for the job and doesn’t get an interview, there’s no discrimination case.
This obesity ruling has turned this entire principle upside down. It has declared that disability will only apply where the person is unable to do the job. Can you imagine this applying to the other protected characteristics? A man can’t do this particular job but, this being the case, if we don’t give him the job we will be discriminating against him, so we must make reasonable adjustments so that he can do the job?! Seriously?
The huge implication of this ruling for employers is that they cannot reject someone for not being able to do a job if the reason for not being able to do the job is their weight. My friend’s niece has just gone through rigorous medical tests to be a police officer – weight, fitness and all sorts. Do the police now have to make reasonable adjustments for anyone to be a police officer, regardless of their ability to chase a criminal? There has always been a height requirement for the forces and air stewards (one needs to be able to reach the overhead lockers). Will there now still be a height requirement but, if someone can’t move easily down the aisles, easyJet needs to make reasonable adjustments?
The radio debates today have been about obese people. Can obese people do anything about their condition? Will there be resentment if obese people are given blue badges. I’ve even heard people saying – “giving them blue badges won’t help – because they won’t walk as far and will get more obese”. The debates have been dominated by the usual “greedy”, “lazy” ignorant kinds of opinion.
For me, the most interesting outcome of the ruling is that, for the first time in discrimination history, protection has been given to only those unable to do a particular thing (carry out particular work, sit in one seat etc). Additionally the onus is now on employers and providers of goods and services to work out how they get around this. I anticipate some extraordinary case law to follow from this unprecedented and possibly unworkable decision.