Articles | Employment bulletin August 2014

Our August bulletin looks at whether obesity can amount to a disability, whether employers can upgrade a disciplinary sanction on appeal and the risks of badly worded post-termination restraints.

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Ian Machray

Ian Machray

Are obese employees protected from discrimination?

Under the EU Equal Treatment Framework Directive (the Directive), employers in the UK and across the EU must not discriminate against disabled employees or job applicants.  Employers also have a duty to make reasonable adjustments if a disabled employee or job applicant is put at a substantial disadvantage as a result of the employer’s policies or a physical feature of their premises.

The Advocate General (AG) in the European Court of Justice (ECJ) recently considered the case of Mr Kaltoft, a Danish childminder.  Mr Kaltoft claimed that he had been dismissed from his job because of his obesity and that this amounted to unlawful discrimination under the Directive.  Mr Kaltoft had a Body Mass Index (BMI) of 54 and weighed over 25 stone.  

The AG gave his opinion that there is no specific protection against discrimination on the grounds of a person’s obesity and obesity alone would not amount to a disability.  He did, however, indicate that a person may be disabled if their obesity is severe (a BMI over 40) and it hampers their involvement in professional life.

The case still has to be considered in full by the ECJ, although the court does normally follow the AG’s opinion.

If a severely obese employee’s weight, or associated medical conditions, are having an impact on their ability to do their job, their employer will need to consider obtaining medical evidence to help determine if they are likely to be disabled and establish what reasonable adjustments (if any) could be made to assist them.  Reasonable adjustments in such cases could include providing larger chairs or increasing the number of disabled parking bays near the entrance to the workplace.

Can employers increase a disciplinary penalty on appeal?

It is accepted practice that an employer’s disciplinary procedure should provide employees with a right to appeal against disciplinary sanctions.  Appeal processes usually result in the original sanction being upheld or downgraded, but a recent case before the Court of Appeal considered whether an employer can increase a sanction on appeal.

The case concerned a consultant employed by an NHS Foundation Trust.  The Trust issued the consultant with a final written warning following instances of misconduct.  The consultant appealed the decision.  The Trust rejected the appeal and indicated that they needed to reconsider the appropriate sanction, as her conduct had rendered her employment untenable.  The consultant sought an injunction to prevent the Trust from dismissing her.

The Court of Appeal noted that a right of appeal is given for the benefit of an employee.  Although there is no legal barrier to an employer upgrading the severity of a sanction on appeal, the Trust’s contractual disciplinary procedure did not expressly provide it with this power and the wording of the procedure meant it could not be implied.  It was also relevant that the non-statutory ACAS Guide on ‘Discipline and grievance at work’ specifically states that an appeal should not result in an increased penalty.

From time to time employers may wish to upgrade the severity of a disciplinary sanction, for example if new evidence emerges at an appeal hearing.  In order to do so, the employer’s disciplinary procedure must expressly provide this right and they should allow a further right of appeal against any uplift in penalty.  Employers should weigh up the advantages of having this power against the potential risk of damaging relationships with staff should the fear of increased sanctions discourage appeals and breed resentment.

Can an employee grievance result in a right to higher pay?

A recent case before the Employment Appeal Tribunal highlighted the dangers of poorly worded replies to employee grievances and the risk of employers being bound by mistaken promises relating to pay.

A group of employees of Sheffield City Council raised a grievance after the Council varied their pay without their consent following a pay structure review.  The HR consultant who was tasked with investigating the grievance replied to the employees on the Council’s behalf, mistakenly informing them that they had now been placed on a higher pay scale.  When the employees failed to receive the promised pay rise, they brought a claim for unlawful deductions from wages.  The Council argued that the HR consultant was not authorised to award pay increases and that the letter contained clear mistakes which the employees should have recognised.

The EAT held that the grievance outcome letter sent by the HR consultant could create a contractual entitlement to higher pay.  The HR consultant was held out as having authority to communicate the employer’s decision, and where a contractual change is purely favourable and involves no additional responsibilities, the change is effective immediately and does not require formal acceptance.

Employers should ensure that the limit on the authority of anybody investigating a grievance is clear to all parties.  Any communications in respect of pay rises should be treated with caution as an employee may not need to expressly accept the change for the employer to be bound by the pay increase discussed.

Are restraints of trade worth the paper they are written on?

Not if they are badly drafted according to the Court of Appeal, which confirmed that a court should not insert new wording to rescue an employer’s poorly drafted restraint, even if that renders the restraint useless and leaves the employer unprotected.

Post-termination restraints are a common tool used by employers to protect their business when employees leave.  Restraints commonly focus on preventing the departing employee from poaching staff, soliciting or dealing with clients, or working for or setting up as a competitor.  However, restraints will only be enforceable against an employee if they are carefully drafted so that they go no further than is reasonably necessary to protect the employer’s legitimate business interests.  Employers must tread a fine line between restraints that go too far and are unenforceable and restraints that are too limited and fail to offer sufficient protection.

Every word is crucial when it comes to preparing enforceable restraints; often a misplaced ‘and’ or ‘or’ can make all the difference.

All restraints must take into account the seniority of the employee and should be tailored to their specific role and circumstances.  For junior staff, employers should consider restraints that are relatively narrow in geographic scope and short in duration.  Less onerous restrictions such as non-poaching of staff or soliciting of clients are generally more likely to be enforceable than those which place restrictions on working for or setting up as a competitor.

It is also important for employers to keep restraints under review.  As an employee gains more experience or moves to a different role, existing restraints may be inappropriate.  If amendments to restraints become necessary then employers should introduce these alongside a pay rise or new benefit, to help ensure the employee accepts the changes and the restraints are supported by consideration.