Does Disability Begin at 40? Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (Advocate General's Opinion) [2014]

Anti-discrimination legislation based on disability has been in existence in the United Kingdom since 1995 with the Disability Discrimination Act. In the UK, the first major legislation action to outlaw discrimination began with sex and race, and the effects of the UK’s membership of the EU accelerated the extent and scope of the law, and these, along with the other protected characteristics have subsequently been codified in domestic law through the Equality Act (EA) 2010. Of the protected characteristics articulated in EA 2010, disability has been defined as where ‘A person has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities. Does this definition extend to individuals who are obese and suffer associated problems due to medical complications? This question is pertinent as nearly 25% of the UK adult population are classified as clinically obese (have a Body Mass Index of 30 or more) and regardless of the effect this has on the NHS and medical profession generally, for employers, it is becoming an increasing problem - ‘Obesity imposes a significant human burden of morbidity, mortality, social exclusion and discrimination.’ Obesity also has a negative impact on the national economy, leading to a reduction in the national output, reductions in tax revenues, with increased spending on benefits such as incapacity and unemployment payments. Whilst the Employment Appeal Tribunal (EAT) held in Walker v Sita Information Networking Computer Ltd [2013] that obesity, of itself, would not amount to disability, it did conclude that being obese is more likely to result in that person suffering a disability-related condition. In Kaltoft v The Municipality of Billund, the Advocate-General (A-G) to the Court of Justice of the European Union (Court of Justice) has provided an opinion that those individuals who are ‘severely’ or ‘morbidly’ obese (i.e. those with a Body Mass Index (BMI) of 40+) maybe treated as disabled. They will be able to avail themselves of legal protection in the event of being dismissed or treated less favourably because of their condition, as a consequence of the impairments they suffer from being obese, but not because they are obese. As such, the law has not changed following the ruling by the A-G, but it does give employers pause for thought in how to ensure reasonable adjustments are made for individuals who are morbidly obese and thereby may (but not will) come under the remit of disability laws