Two disability discrimination issues in one case: Reasonable adjustments not effective without employee consent and maintaining a higher level of pay may be seen as a reasonable adjustment

In G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN the EAT found that a reasonable adjustment to accommodate an employee’s disability was not effective without the consent of the employee.

The Claimant had worked in a number of engineering roles for many years. However, by mid 2012, due to back problems, the Claimant was no longer fit to perform the role which he was undertaking at that time. A new role was therefore created of “key runner” which involved the Claimant driving to various locations and delivering keys to engineers.

He retained his original salary in this position. He remained in this position until his employment was terminated. In May 2013 the Respondent considered discontinuing the role for organisational reasons. The Respondent told the Claimant at this point that they had never considered his role as key runner as permanent. However, they eventually decided to maintain the role as a permanent role, but stated that it would involve a drop in pay for the Claimant. The Claimant was not willing to accept this salary reduction and was therefore dismissed on medical grounds.

At first instance, the tribunal had held that there had been no contractual variation when employing the Claimant into the key runner role. The tribunal held that ‘an adjustment can be effective without the consent of the employee….and therefore it differs from a variation of contract, which requires consent’. It went on to state that there was not a variation of the contract in this situation because there was never a time when the parties had agreed that the contract was varied. The tribunal stated that any such contractual variation would have been supported by written confirmations that he had changed role. However, the Claimant’s case was still upheld on the basis that the failure to maintain the rate of pay in the key runner role was a failure to make reasonable adjustments and therefore he had been discriminated against by the Respondent.

The Respondent then appealed to the EAT against the decision and the Claimant cross-appealed on the finding that there was no contractual variation.

The EAT held that the tribunal had erred in law in holding that there was no contractual variation. An employer could not propose an adjustment which was incompatible with the terms of the contract of employment without the employee’s consent. The EAT held that there was clearly a variation to the contract in this case.

However, the EAT supported the tribunal’s finding in that the employer had failed to make a reasonable adjustment by not protecting the employee’s pay in the key running position. There was no reason why protection of pay could not be a reasonable adjustment. Therefore, the EAT held that since the Respondent’s appeal was dismissed, there was no need to remit the variation issue back to a tribunal.

This case is interesting for two reasons. First of all it shows the connection between reasonable adjustments and contractual variations. Following the EAT’s judgment, it seems clear that any reasonable adjustment that involves a change in the terms of the employment contract such as a change in pay or a change in duties will still require employee consent. In this case the employer arguably found itself in difficulties as they had not clearly stated from the outset that it considered this variation to be temporary, so changing it back or trying to cut pay led to difficulties.

Secondly, there is the finding that protecting a pay level could be a reasonable adjustment. However, this part of the decision must be viewed with caution. The case was decided on its facts. It had provided for the new key runner role to be met at full pay. This arguably illustrated that the salary was clearly a reasonable sum which the employer could afford for the new role in order to accommodate the employee. The case does not say, for example, that if the reasonable adjustment is moving someone to a part time role you have to keep them on full time pay.

It is clear from this case that when considering reasonable adjustments, the employer should be very clear at the outset what the terms are behind the proposed adjustment, and why. It should also make it clear whether it is temporary or permanent and, if temporary, what happens if the temporary period comes to an end without further agreement.



No discrimination where applicant applies for job solely to bring a claim

The ECJ has considered whether a job applicant could claim protection from discrimination under the relevant European equal treatment framework directives if their application is made solely to seek compensation for discrimination, rather than to obtain employment.

In Kratzer v R & V Allgemeine Versicherung (“AV”), AV advertised for graduate trainees who had completed within the last year (or were about to complete) specific degrees. When Mr Kratzer’s application was automatically rejected for not meeting these specifications, he demanded compensation for age discrimination.

AV invited him to an interview, claiming his application had been erroneously rejected. He declined to attend an interview until he had received compensation. The ECJ found that protection from discrimination applies to those “seeking employment”. In its view, Mr Kratzer’s demand to be compensated before he would attend an interview suggested he was not seeking employment. Accordingly, he was not a victim of, or injured by, the automatice rejection of his application, had not suffered loss or damage and was not therefore discriminated against. The ECJ also emphasized that EU law should not be used for abusive or fraudulent ends.

The ECJ’s decision endorses previous UK case law that job applications must be genuine before applicants can claim to have suffered any disadvantage.

26 years old ADA

Twenty six years ago today, when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, he called it “powerful in its simplicity” and explained, “It will ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”  

UN Enable Newsletter

UN Enable Newsletter

June-July 2016

The UN Enable Newsletter is prepared by the Secretariat for the Convention on the Rights of Persons with Disabilities (DSPD/DESA) with input from UN offices, agencies, funds and programs, as well as from civil society organizations, including organizations of persons with disabilities. It is also available online

In this issue:

– Status of the CRPD

– News from UN Headquarters

– News from other UN entities

– Calendar of international disability events

– Other news


166 ratifications/accessions and 160 signatories to the CRPD

89 ratifications/accessions and 92 signatories to its Optional Protocol (OP)

Comoros ratified the CRPD on 16 June.

The Netherlands ratified the CRPD on 13 July.

9th session of the Conference of States Parties concludes

The 9th annual Conference of States Parties (COSP9) to the Convention of the Rights of Persons with Disabilities (CRPD) took place from the 14-16 June at UN Headquarters in New York City, under the overarching theme “Implementing the 2030 development agenda for all persons with disabilities: Leaving no one behind”.

Delegates from 160 States and over 600 NGO representatives attended the conference. Mr. Mogens Lykkentoft, President of UN General Assembly at the opening meeting, underscored the urgent need to translate commitments into concrete action for implementing the 2030 Agenda for persons with disabilities.

Mr. Lenni Montiel, Assistant Secretary General for Economic Development spoke on behalf of DESA along with representatives from OHCHR, UNHCR, UN Habitat and the World Bank during the interactive dialogue with States Parties on the work of the UN in supporting States Parties in their endeavour to implement the Convention. Over 70 side-events covering a range of disability issues, receptions, concerts and film-screenings were organized by Governments, the UN system, and civil society organizations, including organizations of persons with disabilities.

In 2017, the 10th session of the Conference of States Parties will be held from 13-15 June at UN Headquarters in New York. Webcast archives and statements from the Conference are available at

CRPD Committee elections

During the Conference of States Parties, elections were conducted for nine members of the Committee on the Rights of Persons with Disabilities to replace those whose terms are due to expire in December 2016.

The Committee on the Rights of Persons with Disabilities is composed of 18 independent experts. The following new members were elected: Ahmad Alsaif (Saudi Arabia), Monthian Buntan (Thailand), Imed Eddine Chaker (Tunisia), Jun Ishikawa (Japan), Samuel Njuguna Kabue (Kenya), Laszlo Gabor Lovaszy (Hungary), Robert George Martin (New Zealand), Martin Babu Mwesigwa (Uganda) and Valery Nikitich Rukhledev (Russian Federation). (


16th session of the Committee on the Rights of Persons with Disabilities

The 16th session of the CRPD Committee will be held from 15 August to 2 September 2016 in Geneva, Switzerland. The Committee will consider the initial reports of Colombia, Ethiopia, Guatemala, Italy, Plurinational State of Bolivia, United Arab Emirates and Uruguay.

The Committee will also consider progress made in the drafting processes of: draft general comment on article 6 (women and girls with disabilities), draft general comment on article 24 (right to inclusive education), draft guidelines on Independent Monitoring Mechanisms, and draft guidelines on periodic reporting under simplified reporting procedure, with a view to adopt these documents. (


PGA Panel Discussion on the follow-up to the HLMDD

The President of the UN General Assembly (PGA), in accordance with General Assembly resolution 69/142, organized a panel discussion to follow up on the status of and progress made towards the realization of the development goals for persons with disabilities in relation to the follow-up to the High-level Meeting of the General Assembly on Disability and Development (HLMDD, 23 September 2013). The Panel reviewed existing institutional frameworks to mainstream a rights-based approach to disability in development efforts at international, national and local levels and assessed current progress towards the operationalization of the 2030 Agenda for persons with disabilities. Archived webcast available at:

Disability highlighted at the Opening session of the High-Level Political Forum 

The High-Level Political Forum (HLPF) is currently underway at UN Headquarters in New York from 11 to 20 July 2016. The HLPF is the United Nations’ central platform for the follow-up and review of the 2030 Agenda for Sustainable Development and the Sustainable Development Goals, adopted at the United Nations Sustainable Development Summit on 25 September 2015.

The HLPF, at its first session this year, brings Governments, UN agencies and civil society organizations together to follow up and review the 2030 Agenda and the Sustainable Development Goals (SDGs). The Opening Session of the HLPF had a number of speakers from organizations of persons with disabilities, including José Viera of the World Blind Union who made one of the first interventions on behalf of civil society.

Colin Allen, President of the World Federation of the Deaf, introduced the meeting of Major Groups and other Stakeholders, as well as facilitated a workshop on civil society participation at the HLPF, along with Yetnebersh Nigussie, from Light for the World, Ethiopia. Several other disability advocates made interventions and raised issues around accessibility during the HLPF sessions, and were supported by members of wider civil society. The 2016 HLPF session will include voluntary reviews of 22 countries and thematic reviews of progress on the SDGs, including cross-cutting issues, supported by reviews by the ECOSOC functional commissions and other inter-governmental bodies and forums. HLPF will also include a range of side events, a Partnership Exchange event, and SDGs Learning, Training and Practice sessions. ( On 18 July, the Stakeholder Group is holding a town-hall style discussion on the Contributions of Persons with Disabilities in the HLPF Voluntary National Reviews at the Ford Foundation in New York ( The main sessions of the HLPF are broadcast live on the UN’s WebTV ( with closed captioning, and will be made available for replaying later. Follow the disability community’s participation throughout the HLPF at: and by using #HLPF2016 #SDGs and #LeaveNoOneBehind

Global Network contributes to the draft proposal for a New Urban Agenda 

The recently established informal global Network on Accessible and Disability Inclusive Urban Development aims to build and enhance networking among multi-stakeholders including policy-makers in Government, urban development and disability professionals, academics, disability rights advocates and development cooperation partners. It enables concerted efforts to ongoing Habitat III processes, including New Urban Agenda, currently under negotiation and expected to be adopted in Quito during Habitat III in October 2016. The Network and its members contributed inputs and proposals to the UN Habitat III consultations including at the Informal Hearing with Stakeholders in early June. The draft which consists of two major parts, including (1) Quito Declaration on Cities for All and (2) Quito Implementation Plan for the New Urban Agenda is being negotiated by Member States in three rounds of “Informal intergovernmental meetings” in New York, before being presented to the 3rd session of the Preparatory Committee for Habitat III (25 to 27 July, Surabaya, Indonesia) and Habitat III in Quito that opens on 17 October. The New Urban Agenda is expected to guide the sustainable and inclusive development of the world’s cities for next 20 years. The draft New Urban Agenda released on 18 June before the 3rd round of the inter-governmental consultation, an issue paper prepared by DESA and further information on the issues are available on the UN Enable website:

UN Secretary-General commemorates CRPD+10 in China

On 7 July, the Secretary General made a statement at a meeting in Beijing organized by the State Council Working Committee on Disability of the Government of China and China Disabled Persons’ Federation.

The event was held to commemorate the 10th anniversary of the adoption of the CRPD. In his statement, the Secretary-General urged the 28 countries who have not yet ratified the Convention to join the 165 States parties to the Convention and called on more “concrete measures to promote inclusive and accessible societies and development agendas” and “the need to ensure equal opportunities” and “enabling conditions so that people with disabilities can participate in all aspects of development, and in the civic and cultural life of their countries”. The Secretary General underscored that “people with disabilities must become an integral part of national, regional and global thinking and planning, not only in areas that specifically concern them, but in decisions that affect everyone.” (


UNICEF – Early childhood development survey

The Early Childhood Development Task Force (ECDTF) of the Global Partnership Children with Disabilities (GPcwd) is conducting a survey, in collaboration with UNICEF and the RISE Institute. The 15-minute survey concerns inclusive early childhood development (ECD) and early childhood intervention (ECI) programs for children with developmental delays, disabilities or atypical behaviours from 0 to 8 years. If your organization does not work on ECD, please share this message with your partners and networks. Please complete the survey by August 15th. (

UNMAS – New UN Policy on victim assistance in mine action

United Nations Mine Action Service (UNMAS) reports that the principals of the UN entities in the Inter-Agency Coordination Group on Mine Action (IACG-MA) endorsed the updated UN Policy on Victim Assistance in Mine Action on 24 May. The policy aims at improving UN contributions to an effective and coordinated response to realize the human rights of mine and Explosive Remnants of War (ERW) victims, and to move towards a broader approach that is inclusive of persons with disabilities.  Victim assistance refers to adequate age- and gender-sensitive support to victims with the aim of reducing physical and psychological trauma implications and overcoming their economic loss, social marginalization or barriers to the realization of their rights. (

UN Women – Statement on the Committee on the Rights of Persons with Disabilities 

UN Women issued a statement on the recent election process for nine positions that resulted in all-male appointments for 2017, despite the candidature of three women for the positions. They note that Article 34.4 of the CRPD states that “The members of the Committee shall be elected by States Parties, consideration being given to … balanced gender representation.” Recognizing the unique and intersecting challenges that women with disabilities face, UN Women joins the many voices that have expressed concern regarding the new composition of the Committee, in which the diverse voices and experiences of women with disabilities have been diminished. Read the full statement:

UN Women: Have your say: How can we help women to get better jobs, earn more money, and start a business?

The UN Secretary-General’s High-Level Panel on Women’s Economic Empowerment has teamed up with the UN Sustainable Development Goals Action Campaign to roll out a women’s economic empowerment edition of the MY World survey on how we can help women get better jobs, earn more money, and start a business. The survey will gather people’s views on the world of women and work – from the barriers they face to ideas that could act as force multipliers to their economic progress. The responses to the survey will also be shared with members of the High-Level Panel who plan to release a report this September, containing recommendations on how to accelerate women’s economic empowerment. (

UN Women: Call for papers on mobility, gender and family relations for flagship report

UN Women is seeking regionally diverse, empirically grounded and innovative research on human mobility, gender and family relations to inform this chapter. The selected papers will identify public policies and other kinds of interventions that enable or constrain women’s enjoyment of their human rights, among those who migrate and those who stay behind. (

ILO – From words to work

At COSP9, the International Labour Organization (ILO) along with the UN Permanent Missions of Australia, Costa Rica, Finland and Spain, the International Disability Alliance, as well as the UN Global Compact, organized a side event on the employment of persons with disabilities “Unusual” employment of persons with disabilities: from words to work”. Panellists noted that there was an increasing interest among companies in developing countries to promote the employment of persons with disabilities. This welcome interest stood in contrast with the wide held belief that the only option for people with disabilities to have a job in developing countries is through being self-employed, usually in the informal economy. However, the employment of persons with disabilities is still seen as something “unusual”. (

ILO Global Business and Disability Network newsletter

The ILO Global Business and Disability Network (GBDN), a partnership of multinational companies and national business and disability networks as well as international disability rights organizations, has launched its new newsletter. The newsletter – issued bimonthly in English and Spanish – allows GBDN members to communicate their main achievements to a global audience, so subscribers are kept update on latest initiatives by businesses that promote quality employment for persons with disabilities across the globe and in particular in developing countries. To sign up for the newsletter, please enter your email address at for English or at for Spanish.

WIPO – Canada’s accession to Marrakesh Treaty brings treaty into force

Canada, as the key 20th nation to accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, will bring the Treaty into force in three months’ time on 30 September 30 2016. “This is great news for people with visual impairments and for the multilateral intellectual property system. The Marrakesh Treaty will, when widely adopted throughout the world, create the framework for persons who are blind and visually impaired to enjoy access to literacy in a much more equal and inclusive way,” said Francis Gurry, the Director General of WIPO, the World Intellectual Property Organization. Canada’s accession was preceded a day earlier by Ecuador and Guatemala. (

World Bank – News on disability and socio-economic inclusion

Through its Social, Urban, Rural and Resilience Global Practice, the World Bank continues to formalize partnerships to promote disability inclusion across development programming. The World Bank and ONCE Foundation are joining forces to advance the social and economic development of persons with disabilities through education, employment, skills development, training, and universal design and accessibility for all. The World Bank has also signed an agreement with the Nippon Foundation to collaborate on activities related to disability, including the creation of employment opportunities for persons with disabilities. Both parties aim to cooperate on the organization of vocational trainings on ICT and use of ICTs for persons with disabilities and foster partnerships with other entities involved in disability-inclusive programs, encouraging the exchange of experiences, know-how, and sharing of knowledge of disability-inclusive development.

The World Bank hosted a side event at COSP9 to brief participants on upcoming Disability Inclusion and Accountability Framework. The Framework will provide guidance for mainstreaming disability across the World Bank’s operations and building internal capacity to support governments in implementing disability-inclusive development programs and CRPD obligations. The World Bank’s Global Disability Advisor, Charlotte McClain-Nhlapo spoke at the Dialogue on Implementation of the Convention with the UN system: Celebrating the 10th anniversary of the adoption of the CRPD, and highlighted the strong link between disability inclusion and the twin goals of the World Bank; reducing extreme poverty and boosting shared prosperity.

On June 22nd, the World Bank hosted a webinar on Pathways to Inclusion in Disaster Risk Management (DRM) to sensitize DRM practitioners on the social dimension of DRM. Presenter Margaret Arnold, Senior Social Development Specialist, and host Charlotte McClain-Nhlapo, Global Disability Advisor, jointly discussed entry points for ensuring inclusion of all communities in DRM processes and showcased good practices that are responsive to the needs of persons with disabilities in disaster and emergency situations. Over 100 participants from over 30 countries registered for the webinar.

The World Bank’s Education and Social, Urban, Rural and Resilience GPs are jointly developing a knowledge series on Inclusive Education to build the capacity of Bank staff to assist country clients in designing effective policies, systems, and practices to ensure equity in education and quality learning outcomes for children with disabilities. The series will feature several notes covering a wide range of issues such as data, building human capacity, stakeholder participation, resource allocation, and accessible learning environments. (


Please send us information on major international disability events, for possible inclusion in the list below, Now also available on the UN Enable website at


11 to 20 July: High-level Political Forum on Sustainable Development


25 to 27 July: 3rd session of the Preparatory Committee for Habitat III, Surabaya, Indonesia


18 to 25 August: IX General Assembly of the World Blind Union


7 to 18 September: 2016 Paralympic Games, Rio de Janeiro, Brazil


27 to 29 September: 2nd CBR World Congress, Kuala Lumpur, Malaysia


16 October: DESA DSPD Forum on Accessible and Disability Inclusive Urban Development, Quito, Ecuador


17 to 20 October: HABITAT III, UN Conference on Housing and Sustainable Urban Development, Quito, Ecuador

(; Registration:

25 to 27 October: 23rd Rehabilitation International (RI) World Congress, Edinburgh, UK


3 December: International Day of Persons with Disabilities




22-26 May 2017: UNISDR Global Platform for Disaster Risk Reduction


8 to 10 November 2017: 3rd International Conference of the World Federation of the Deaf, Budapest, Hungary


24 to 26 May 2017: UNISDR Global Platform for Disaster Risk Reduction and Disabilities




(DISCLAIMER: The information below is provided by other stakeholders for informational purposes only. This does not constitute endorsement of, or an approval by, the United Nations of any of the products, services, or opinions of the organization or individual. The United Nations bears no responsibility for the accuracy, legality or content of their statements and opinions.)



Disabled People’s International (DPI) members from Australia, Dominican Republic, Ethiopia, Gambia, India, Lebanon, Morocco, Niger, Senegal, Sri Lanka and Togo participated in the 9th Conference of States Parties to the CRPD (COSP9) in New York. Sylvana Lakkis, DPI’s Vice-Chair in her statement during the General Debate highlighted the Delhi Declaration and called to bridge the knowledge gap between global and local DPOs. Among other issues, DPI highlighted the need for greater transparency of mechanisms enabling participation of people with disabilities, and the impact of systemic disempowerment of local and national DPOs. During COSP9, DPI also co-sponsored several side-events. (


DRF announces second grants round to promote CRPD implementation

The Disability Rights Fund (DRF), a grant-making collaborative between donors and the global disability community which supports the human rights of persons with disabilities, announced its second 2016 grants round, “CRPD at 10: Accessing the Right to Development.” Grant-making in this round will be targeted to disabled persons’ organizations (DPOs) in Bangladesh, Pacific Island Countries, Rwanda, and Uganda. The broad objective of the Fund is to empower DPOs in the developing world to use the UN CRPD to increase participation of persons with disabilities in society. Interested organizations are urged to review the full eligibility criteria and application details posted at the Fund’s website, or email:


Human Rights Watch blog: Redefining Disability

Paras Shah notes “One of the most profound challenges surrounding disability is the sense of stigma that it brings. Many of the Human Rights Watch reports I read in the past year carry a constant refrain: people with disabilities are seen and treated as less than human. With so many negative attitudes, it becomes easy to internalize a sense of worthlessness, to feel as though your very sense of self amounts to just your disability. This needs to change, and it needs to change now. People with disabilities must affirm our self-worth and demand that others do the same. Disability is beautiful. Moving forward, I plan to celebrate that difference.” Read the complete blog at:


IJME: Reintroducing differences linguistically

The Indian Journal of Medical Ethics (IJME) notes that different models have defined the term disability and grouped persons with disabilities accordingly. Time and again, various terms and phrases have been used in different languages to identity persons according to the differences in their bodies and the level of functioning of those bodies. Analogies and metaphors create stereotypes and can affect the formation of an individual’s self-concept. The authors of this paper state that what is required is the creation of a non-disabling environment and the provision of equal opportunities for those with disabilities rather than coining of new terms. (Full article:


Silent Moves

Silent Moves is a film made through collaboration between visual artist Aideen Barry, and artists from Western Care’s Scannán Technologies and Ridgepool Training Centre. The project took place over a period of eight months in Ballina and is focused on developing skills in: stop motion animation, film, script development and performance techniques.  Irish dance artist and choreographer Emma O’Kane, worked alongside Aideen Barry as the group developed their ideas and story boards. The collective talents of the 30 group members with the lead artists, created this wonderful, moving and hilarious film. (


WFD- Expert Groups

The World Federation of the Deaf (WFD) announced the appointed co-ordinators and members of 2016-2019 WFD Expert Groups for: Accessibility (Technology and Sign Language Interpretation), Deaf Education, Sign Language and Deaf Studies, and Human Rights. The role of the WFD Expert Groups is to serve as an expert advisory body for the WFD Board and its Working Committees, WFDYS Board and WFD Secretariat and to contribute to the fulfilment of the WFD goals, defined in the WFD Action Plan 2016-2019.  The purpose of the WFD Expert Groups is to provide advice and guidance about their area of expertise, in line with the WFD Vision and Mission, WFD Action Plan, WFD Congress Resolutions, the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), other UN Treaties and Agenda 2030. (




Secretariat for the Convention on the Rights of Persons with Disabilities

Division for Social Policy and Development (DSPD)

Department of Economic and Social Affairs (DESA)

S-2906, United Nations Headquarters, New York, NY 10017, USA.








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World Refugee Day

Alex Ghenis,Policy and Research Specialist,World Institute on Disability,

Today, 6/20, is World Refugee Day, where we recognize the experience of refugees and commit to protecting their well-being. The United Nations has explained its importance on its website here Today is certainly one that deserves recognition and work, and should be a call to action to support refugees worldwide.
Refugees with disabilities often face greater difficulty and discrimination throughout the conflict, displacement, migration and relocation process. Those difficulties include greater vulnerability to physical and sexual violence, troubles maintaining health care and social support, and finding accessible transit and accommodations through the migration process. Some refugees are even denied residency simply because they have a disability, leaving them in limbo and potentially separated from their support networks. But as with many situations, people with disabilities are under-recognized as a group that experiences excess difficulties, and one that needs specific support throughout difficult times. It is important for communities and decision-makers to be made aware of people with disabilities’ specific situations and needs – and to address them in a way that protects those refugees’ well-being.
If you are interested in more information about refugees with disabilities, and issues which affect their lives, please check out some of the following resources – and search around online. There are many specific resources, and they need to be brought into the mainstream even more.
UN High Commission on Refugees (UNHCR) “People with Disabilities” page:
UN Enable’s International norms and standards related to disability: focus on refugees
Forced Migration Review (FMR) #35: Disability & Displacement – a 35-article, 60-page special publication on those displaced by conflict and other disasters. Http://

… And of course, an online search for “refugee Disability” yields much more.

National decision in the case of Kaltoft

The District Court in Kolding passed judgment on 31 March 2013 in a case regarding Billund Municipality’s dismissal of an employee with severe obesity.

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.

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 KarstenKaltoft at the time of the dismissal was suffering from any disease entailing a handicap pursuant to the discrimination act. The court stated that Karsten Kaltoftdespite 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.