Kerry Underwood


with 4 comments

Fag considered

 The decision of the Court of Justice of the European Communities in Fag Og Arbejde v Kommunernes Landsforening [2014] EU ECJ C-354/13 – 18 December 2014

has been widely misreported. Far from establishing discrimination on the ground of obesity to be unlawful it held that it is not a ground protected from discrimination, that is what in the UK we know as a protected characteristic.

“36. According to the case law of the Court, the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in article 1 thereof…”

“37. Consequently, obesity cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination.”

“38. In this case, the file provided to the Court contains nothing to suggest that the situation at issue in the main proceedings, insofar as it relates to a dismissal purportedly based on obesity as such, would fall within the scope of EU Law.”

“39. In that context, the provisions of the Charter of Fundamental Rights of the European Union are likewise inapplicable…”

“40. Having regard to the foregoing considerations, the answer to the first question is that EU Law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such as regards employment and occupation.”

That is crystal clear and, in contrast to most ECJ judgments, it is in nice, short, crisp paragraphs.

What the court then went on to hold is that obesity could be a disability and of course disability is protected from discrimination and in the UK is a protected characteristic.

That is a very different matter and it is clearly and obviously right. To hold otherwise would effectively deprive a whole group of people from protection. Some people are obese because of medical reasons, or medical treatment, or temporarily because they are pregnant. To exclude from protection those who are obese and to exclude obesity as ever being a disability would, in the UK, class obese people with pyromaniacs, sex maniacs, kleptomaniacs, voyeurs and exhibitionists; those conditions are expressly excluded from being classed as impairments.

Thus in UK law the issue is not whether someone is obese but whether they, put simply, have a long-term impairment. Anything else would be absurd. If a certain level of obesity, and how on earth does one measure that, deprived a person of protection then it may be in employers’ interest to fatten up their staff like foie gras geese so as to get the employer off risk.

Would one move in and out of protection depending upon how many beers and curries you had at the weekend?

What is behind this is a feeling that fat people have made a lifestyle choice and have only themselves to blame. That may be true but the disability legislation looks at the consequences of a condition and not its cause.

Are we to stop regarding people with cancer as having a disability if it was caused by smoking? What about the person who is disabled as a result of taking part in dangerous sports? Is diabetes a disability if it is caused by smoking but not if it is caused by being overweight?

As the court here said in a short and lucid paragraph:-

“56. The concept of “disability” within the meaning of Directive 2000/78 does not depend on the extent to which the person may or may not have contributed to the onset of his disability.”

That is a perfect and sensible analysis of a sensible law.

The consequences of obesity may be a disability just as the consequences of smoking, the consequences of playing cricket or rugby or parachuting or whatever may be a disability.

The phrase that some commentators have picked up and run with appears at paragraph 64 of the judgment:-

“…the obesity of a worker constitutes a “disability” within the meaning of that directive where it entails a limitation resulting in particular from long term physical, mental or psychological impairment which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”

The suggestion that employers need to provide larger chairs or special car parking and protect employees from verbal harassment in relation to their weight and that shops and cinemas and restaurants must provide bigger seats or special seating arrangements etc is wholly wrong.

I am not always a huge fan of the European Union or of the European Court of Justice. However this is a model decision, short and clear and to the point and very obviously right.

So you can continue singing “Who Ate All the Pies?” and “Have You Ever Seen Your Dick?” without fear of being accused of discrimination.

 Notes to the Administrative Court:

  1.  “Who Ate All the Pies?” and “Have You Ever Seen Your Dick?” are titles of popular songs referring to people’s weight and are frequently sung at Association Football matches.
  2. Association Football is a popular spectator sport where feckless working class people waste their money instead of saving it for Employment Tribunal fees.

Written by kerryunderwood

December 19, 2014 at 1:50 pm

Posted in Uncategorized

4 Responses

Subscribe to comments with RSS.

  1. Very good

    Paul Lewis
    Partner and Head of Accident Management
    for and on behalf of George Ide LLP
    Direct Dial 01243 812408
    Tel: 01243 786668
    Fax: 01243 831300
    DX 30306
    Lion House
    79 St Pancras
    West Sussex
    PO19 7GE


    Join LAW CALL PLUS for free
    Law Call Plus

    Paul Lewis

    December 19, 2014 at 2:05 pm

  2. Thanks Kerry. Excellent counterbalance to all the furor I have seen on social media since the judgment started trending. Great call back too!

    Daniel Flowers

    December 19, 2014 at 2:58 pm

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: