Whilst European Union law did not lay down a general principle of non-discrimination on grounds of obesity regarding employment and occupation, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation meant that the obesity of a worker could constitute a “disability” where it entailed a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers might hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, which was for the national court to determine.

The Court of Justice of the European Union so held on a reference for a preliminary ruling under article 267FEU of the FEU Treaty from the retten i Kolding (court in Kolding), Denmark, in proceedings between the Fag og Arbejde (FOA), a workers’ union, acting on behalf of the employee, Mr Kaltoft, and the Kommunernes Landsforening (KL) (National Association of Danish Municipalities), concerning the lawfulness of Mr Kaltoft’s dismissal on the basis of his obesity.

THE COURT (Fouth Chamber) said that following the ratification by the European Union of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L23, p 35), the court held that the concept of “disability” must be understood as referring to a limitation which resulted in particular from long-term physical, mental or psychological impairments which in interaction with various barriers might hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers: see HK Danmark v Dansk almennyttigt Boligselskab (Joined Cases C-335/11 and C-337/11) EU:C:2013:222; [2013] ICR 851, paras 37–39; Z v A Government Department (Case C–363/12) EU:C:2014:159; 18 March 2014, para 76; and Glatzel v Freistaat Bayern (Case C-356/12) EU:C:2014:350 [2014] RTR 26, para 45. Whilst obesity did not in itself constitute a “disability” within the meaning of Directive 2000/78, on the ground that, by its nature, it did not necessarily entail the existence of a limitation, in the event that, under given circumstances, the obesity of the worker entailed a limitation which resulted in particular from physical, mental or psychological impairments that in interaction with various barriers might hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation was a long-term one, obesity could be covered by the concept of “disability” within the meaning of Directive 2000/78: the HK Danmark case, para 41.