Noteworthy Danish case: Obesity is not a disability

The Court in Kolding has decided that obesity in itself is not a disability. As such, the termination of a severely obese daycare provider in the Municipality of Billund was not considered to be discrimination.    

The case in brief

A male daycare provider had since 1996 been employed at the Municipality of Grindsted (today the Municipality of Billund). During his employment, the daycare provider did not weigh below 160 kilos at any time, which equals a Body Mass Index (BMI) of 54. A BMI above 40 is classified as morbid obesity according to WHO.

On the basis of a declining birthrate in the municipality, a process of termination was initiated in which each daycare supervisor in the municipality recommended dismissal of one daycare provider. After this, the Municipality decided to terminate the daycare provider.  

Prior to the termination, the daycare provider had tried to loose weight. He had also received a one-year paid gym membership of the Municipality. In the period up until the termination, at three different visitations at the daycare provider’s home, the daycare supervisor had inquired into the weight loss and asked how things were with his training.

However, the Municipality never required a weight loss and the work performance of the daycare provider was also satisfactory. The weight of the daycare provider had never caused any challenges in connection with the execution of the work tasks for the day care provider, and it was never considered to ease the job tasks for the daycare provider.      

Subsequent to the termination, the labor union of the day care provider claimed that the obesity had been a contributory factor to the final decision of terminating the daycare provider and that obesity did constitute a disability.  

The Municipality upheld that the termination was justified by the declining birthrate in the municipality which entailed a need for a reduction of staff in the daycare sector. Moreover, the municipality cited that the termination of the daycare provider took place within the applicable guidelines for termination in the Municipality of Billund.  

Court Decision

On its way, the case passed by CJEU, which in December, 2014 clarified the preliminary questions that the Court in Kolding presented to the Court.   

In case C-354/13, CJEU established that EU law must not be interpreted as laying down a general principle of non-discrimination on the grounds of obesity. Obesity in itself is not a disability as it is understood in the context of the directive on non-discrimination (directive 2000/78).    

CJEU then considered whether obesity could be a disability, to which the court found:  

”obesity does not in itself constitute a disability within the meaning of Directive 2000/78 … However, in the event that, under given circumstances, the obesity of the worker entails a limitation which results in particular from physical, mental or psychological impairments that interaction with various barriers may hinder the full and effective participation of the person in professional life on equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of »disability« with the meaning of directive 2000/78.”     

The Court in Kolding established initially that the burden of proof is on the employee to prove that he/she suffers from a disability, and also that the employee must establish the issues of facts which gives rise to presume that direct or indirect discrimination has been exercised.  

Hereafter, the Court made an assessment of the issues of the facts.

After this assessment, the Court did not find proof that the obesity of the daycare provider constituted a disability in the legal sense of discrimination. This was made on the basis that he was not exposed to a limitation as a result of obesity that hindered the full and effective participation in his professional life on equal basis with other workers.

The Court found hereafter that the basis for the termination was in compliance with the actual situation in the municipality at the time of the termination. Thus, since there were no grounds for presuming that the decision of terminating the obese daycare provider was discriminating, the Municipality of Billund was dismissed of the claim of discrimination.   

The question of whether Denmark’s obligations under international law and in pursuance of the Charter of the European Union and the European Convention on Human Rights and from this an obligation to a principle of non-discrimination, the Court found no reason to consider that in this case was any specific legal basis for granting compensation.

On its own motion, the Court dismissed the question of whether the termination was reasoned because this question came within the sphere of the labour system. The reason for this being that the employment was covered by a collective agreement which contains special rules for the procedure in the event of allegedly unreasonable terminations, and also rules to have a board of dismissal.       

Finally, the Court found that the Municipality of Billund should have referred to the Municipality’s criteria of unreasonable termination in connection with this termination. However, the failure of providing this information was not enough to grant compensation in pursuance of the administrative legal rules.    

Lund Elmer Sandager comment:

In its judgment, the Court in Kolding – as CJEU – has established that obesity in itself is not a protected criterion within the frames of the EU Court and thus Danish Court. Obesity does neither in itself constitute a disability; however, it might constitute a disability. This depends, among other things, on how the obesity in the certain situation is influencing the employee’s ability to perform the work tasks.      

However, it can be considered unreasonable to emphasize overweight in connection with a decision of terminating employees if the overweight in itself, otherwise, does not cause challenges when job performing.

As in previous case law regarding discrimination in connection with a disability, the judgment establishes that it is the employee who carries the burden of proving that he/she has a disability at the time of termination, and also that it is the employee who carries the burden of proving the issues of facts which give rise to presume that direct or indirect discrimination has been exercised due to the disability.   

The judgment is very useful in practice as it provides a clear framework for what you as the employer must pay special attention to when terminating employees with mental or physical impairments.  

If the impairments of the employee, interacting with various barriers, do not hinder the full and effective participation of the person in professional life on equal basis with other workers, it will be difficult for an employee to succeed in his/her claim of being disabled.

The labor union of the daycare provider is now considering appealing the decision.

If you have any questions to this newsletter or other questions within the field of employment law, feel free to contact the specialists at Lund Elmer Sandager, Michael Møller Nielsen and Julie Flindt Rasmussen, to further discuss the case and how this may impact your company.