Denmark: Judgment in the "Kaltoft case" regarding whether obesity can be considered as a handicap

The case:

On 22 November 2010, a baby minder employed with the Municipality, Karsten Kaltoft, was dismissed by Billund Municipality. The dismissal was reasoned by a "declining number of children", but Karsten Kaltoft believed that the dismissal was reasoned by his obesity and that he was thereby subject to discriminatory treatment pursuant to The Danish Act on Prohibition against Discrimination on the Labour Market (the discrimination act).

The baby minder had been employed with the Municipality for approximately 15 years, and according to his own statement, he had never during this period weighed less than 160 kg. He was 172 cm tall. The baby minder had thus been "fat" – such as the term "obesity" is defined by the WHO – during the entire period of employment.

The District Court in Kolding submitted the question whether obesity was comprised by the handicap term in the directive – and thereby in the discrimination act - to the European Court of Justice (ECJ).

By judgment of 18 December 2014, the ECJ decided that the EU law must be construed to the effect that it does not stipulate a general principle on the prohibition against discrimination due to obesity in itself as regards employment and job positions. In other words, directive no. 2000/78, and thereby the discrimination act, does not provide any specific job protection for obese persons as the European Court of Justice dismissed that obesity in itself is protected pari passu with gender, religion, race, etc.

However, in the reply the ECJ was open to the fact severe obesity in certain circumstances may constitute a handicap, and thereby fall within the handicap term if the limitations of the handicapped person entail i) long, ii) physical, mental or psychological injury which in the interaction with other barriers iv) may prevent v) the person in question from fully and efficiently participating in work activities on equal terms with other employees.

Read our previous article on ECJ judgment >>

It was therefore up to the District Court in Kolding to assess whether

1. Karsten Kaltoft's obesity formed part of Billund Municipality's grounds for the dismissal, and
2. in the affirmative, whether Billund Municipality thereby had exercised unlawful discrimination.

The judgment:

The District Court in Kolding handled several questions in the case.

Initially, the court established that there was no proof substantiating that Karsten Kaltoft at the time of the dismissal was suffering from any disease entailing a handicap pursuant to the discrimination act. The court stated that Karsten Kaltoft despite his obesity had carried out his full time job continually for more than 14 years without any discussion between him and Billund Municipality or initiation of adaptation arrangements pursuant to S 2a of the discrimination act.

The inconvenience described by Karsten Kaltoft, including the restrictions of movement relating to the performance of his job activities, were not considered by the court to be of a nature preventing him from performing his job as a baby minder.

Further, the court refused to deal with Karsten Kaltoft's claim for compensation for unfair dismissal pursuant to the collective agreement for baby minders 14/2010 between the national association of municipalities (KL) and the trade union (FOA) as the trade union had not initially pursued the claim within the system pertaining to labour legislation pursuant to S 11(2) of the Danish Labour Act. In other words, this question could not be handled by the ordinary courts, which was why it was rejected.

The court took the view that the case regarded a discretionary dismissal entirely due to lack of work. The grounds for the dismissal, i.e. declining number of children and thereby lack of work, resulted in financial and operational irregularities in the day-care, which was considered by the court to be in accordance with the real situation as to staffing requirements in the day-care. In relation to the actual dismissal, the court stated that it had taken place in pursuance of the provisions of the Danish Public Administration Act, which was why Karsten Kaltoft could not be awarded compensation for this.

Based on the above, The District Court in Kolding gave judgment completely in favour of Billund Municipality.

Bird & Bird's comments:

The District Court in Kolding establishes that it had not been substantiated that Karsten Kaltoft was dismissed due to his obesity as there were reasons to draw the conclusion that the dismissal was caused by financial and operational circumstances within the Municipality. At the same time, the District Court in Kolding emphasises that the employee is the one to substantiate that he was handicapped at the time of the dismissal and that the dismissal was caused by that.

The court follows the ECJ's judgment and establishes at the same time that obesity in itself does not constitute a handicap pursuant to the discrimination act. Furthermore, Karsten Kaltoft was not so bothered by his obesity that it prevented him from performing his job on equal terms with other employees, which is why - in the present case - the obesity did not constitute a handicap.

The union now considers whether to appeal the judgment to the High Court. Bird & Bird will follow the development of the case.