Obesity was not a disability

The judgment in the obesity case - which has caused quite a stir both in Denmark and the rest of the world - has finally been delivered.

The case involved a Danish childminder who for more than 15 years had worked for a municipalitywhere he had provided childcare services in his own home. On 22 November 2010, the childminder was dismissed due to a decreased number of children in the municipality. However, the municipality did not state why the choice fell on this particular employee.

Throughout his entire employment, the employee was to be considered as obese in the senseof WHO's definition thereof, and at the time of the dismissal, the employee had a BMI of 54. The employee's obesity was mentioned in connection with a meeting regarding the dismissal, but the parties disagreed as to why this issue was discussed. As such, the employee argued that the dismissal was due to his obesity and thus contrary to the Danish Anti-Discrimination Act.

In 2013, when the case was brought before the Kolding City Court, the court made a preliminary reference to the European Court of Justice, which delivered its judgment on 18 December 2014 in case no. C-354/13.

The European Court of Justice

In accordance with the Advocate-General's opinion, the European Court of Justice did not find that the Union law prescribes a general principle of prohibition against discrimination due to obesity alone in regard to employment and occupation. However, the European Court of Justice did find that obesity may constitute adisability to the extent that it comprises (i) long-term, (ii) physical, mental or psychological impairments, which (iii) in interaction with various barriers (iv) hindered the affected employee's participation in the labour market (v) on an equal basis with other employees.

Consequently, the court found that long-term obesity may constitute a disability if it hinders the employee from participating in the labour market on an equal basis with other employees as a consequence of the employee's restricted mobility or illness, which prevents the affected employee from carrying out his work, or where the performance of the relevant occupational duties causes discomfort.

The Kolding City Court

Based on the information about the decreased number of children, the court took the view that, from a purely operational point of view, there would have been basis for reducing the number of childminders.

Furthermore, the court took the view that the employee's weight throughout the employment did fulfil the criteria for obesity and that obesity alone does not constitute a disability in the sense of the Anti-Discrimination Act.

However, the court found that the employee - according to the medical information - had not established that he suffered from physical, mental or psychological impairments as a consequence of the obesity, which prevented him from fully and effectively performing his work as a childminder on an equal basis with otheremployees.

Moreover, the court did not find, inter alia in relation to the nature of the work, that the discomfort as described by the employee - including the restricted mobility in connection with the performance of his occupational duties - was to such an extent that it prevented him from carrying out his work as a childminder.

Accordingly, the court did not find that it had been proven that the employee, at the time of the dismissal, had suffered from an illness which caused a disability in the sense of the Anti-Discrimination Act.

The judgment shows that obesity alone does not constitute a disability in the sense of the Danish Anti-Discrimination Act, see also the judgment of 18 December 2014 from the European Court of Justice, but that obesity - in certain special circumstances - may constitute a disability if it has been sufficiently documented that physical, mental or psychological impairments or discomfort as a consequence of the obesity prevent the affected employee from fully and effectively carrying out his work on an equal basis with others.

The judgment has been appealed.