It can be, held the European Court of Justice in FOA (Kaltoft) v Billund. However, discrimination on the grounds of obesity is not itself unlawful.
Mr Kaltoft was a clinically-obese childminder for a local council in Denmark. He was dismissed due to redundancy; he alleged that obesity was a factor and brought proceedings. The District Court referred four questions on obesity to the ECJ for a preliminary ruling.
The first three questions dealt with whether it was unlawful to discriminate on the grounds of obesity, whether any such right was directly applicable, and querying the appropriate burden of proof. The ECJ held that obesity itself cannot be regarded as a ground for protection against discrimination, and therefore the second and third questions need not be answered.
The fourth question related to whether obesity could be deemed to be a disability under EU Directive 2000/78/EC (the general framework for equal treatment in employment and occupation) and if so, how to determine if an obese person is protected against disability discrimination.
The ECJ held that in the event that "under given circumstances, 'obesity' entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one", it could be a disability. The origin of the disability, or contribution to it, were irrelevant.
It was a matter for national courts (e.g. employment tribunals) to determine whether the conditions required for obesity to be a disability are met.
Therefore, a worker with long-term obesity might be regarded as disabled.