In the opinion of the Advocate General (AG) of the European Court of Justice (ECJ), morbid obesity (BMI of more than 40) may fall within the meaning of disability under EU law, despite the fact that EU law does not legislate on discrimination on the ground of obesity. It is important to keep in mind that the opinion of the Advocate General is not binding however if the ECJ agrees with this opinion when it rules on the case FOA, acting on behalf of Karsten Kaltoft v Billund, then this would have implications on employers in the UK. In practice this means that employers may be required to make reasonable adjustments as provided for under the Equality Act 2010.
The case which was brought by the Danish courts to the ECJ deals with the dismissal of a Danish child minder. The child minder has a body mass index of 54 and his claim is of unlawful discrimination because of his weight. Therefore the Danish court asked the ECJ to shed light on whether or not obesity is disability and if this is the case, how it could be established.
The opinion of the AG is not binding but in the event that the ECJ shall agree with the opinion then what this means in practice for employers is that they would need to make adjustments for obese employees.