Obesity is high on the agenda. Malta’s population ranks the sixth most obese or overweight in the world.

In the face of a steady increase in obesity over the last couple of decades both in Malta and elsewhere, legislative initiatives are called for to address this growing society problem.

A recent Opinion of the Advocate General of the Court of Justice of the European Union (CJEU) assumes particular significance because of the rising obesity levels.

Advocate General Jääskinen addressed the loaded question of whether obesity constitutes disability in an anticipated opinion given in a case filed by Kaltoft, who had been working as a child-minder for 15 years with the Municipality of Billund, caring for other people’s children in his own home. During his work experience as a child-minder, Kaltoft was obese, weighing over 160 kilograms, with a body mass index (BMI) of 54, which is on the higher end of the scale of obesity falling within the classification of ‘severe, extreme or morbid obesity’ or the class III category of the World Health Organisation. Due to Mr Kaltoft’s obesity, as part of its health policy, the municipality provided financial assistance in order for him to attend fitness and physical training sessions.

In 2010, his employment with the municipality was terminated. The grounds for dismissal were stated to be a decline in the number of children making use of the service. The employee claimed before a Danish Court that his dismissal was based on unlawful discrimination on the grounds of his weight and sought damages for disability discrimination. The Danish Court referred to the CJEU for a preliminary ruling, requesting a clarification as to whether obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market.

The aim of the Employment Equality Directive is to prohibit any discrimination based on religion or belief, disability, age or sexual orientation. Disability is not defined in the directive but it has been interpreted to refer to a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

The AG was required to opine on whether obesity could itself amount to a disability. The possibility that obesity per se amounts to a disability under the directive was excluded. However, to be classified as a disability, it is not necessary for the impairment to make working impossible. Therefore, where obesity has reached such a degree that it hinders full and effective participation in professional life, it can be considered to be a disability. The obesity would have to be severe enough to have an impact on factors such as mobility, endurance or mood. To this extent, non-severe obesity of a BMI under 40 is insufficient to qualify as a disability.

The AG further stated that the origin of the disability as irrelevant. The reasons for an employee’s obesity are irrelevant to the question of whether that person is disabled or not and does not depend on whether the impairment could be said to be the result of one’s behaviour, through over-eating and lack of exercise, or due to external factors such as a metabolic problem or a side effect of medication.

The AG’s opinion is not legally binding but if the CJEU concurs, the implications are not insignificant.

Under the EU Employment Equality Directive, an employer has a duty to reasonably accommodate an employee with a disability. For this purpose, an employer is required to take appropriate measures to enable a person with a disability to have access to, participate in, or advance in employment and training unless that accommodation would create disproportionate burden on the employer.

An employer must also seek to avoid any substantial disadvantage suffered by a disabled person compared to non-disabled persons in relation to a particular provision, criterion or practice applied by them or in relation to a physical feature of their premises. Employers have to take steps to avoid discrimination, harassment and victimization at their place of work and they are not able to discriminate against persons with a disability in connection with recruitment, terms of employment, promotion, training or dismissal.

The outcome of the judgment of the Court of Justice is expected in the next months.

jgrech@demarcoassociates.com

Josette Grech is an associate at Guido de Marco and Associates.

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