Articles | Employment bulletin January 2015

This month we focus on whether obesity classifies as a disability, an employee who tweeted himself into trouble, varying contracts of employment and reasonable adjustments.

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Louise Smyth

Louise Smyth

Is Obesity a Disability?

A key decision from the European Court of Justice

Obesity

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Following on from Advocate General’s opinion in August 2014, the European Court of Justice (ECJ) has now delivered its judgment in a key case on the topic of obesity and disability. The case concerned Mr Kaltoft, a Danish childminder who claimed that his dismissal from his job was due to his obesity and that this constituted unlawful discrimination under the EU Equal Treatment Framework Directive. Mr Kaltoft weighed over 25 stone and had a Body Mass Index (BMI) of 54.

The ECJ agreed with the Advocate General that there is no general principle in EU law which prohibits discrimination against a person on the grounds of their obesity.  However, it found that obesity could amount to a disability where its impact is to hinder a person’s full and effective participation in professional life on an equal footing with other workers.  Unlike the Advocate General, the ECJ did not indicate that obesity would only qualify as a disability where it is severe (i.e. a BMI of more than 40).  Instead each case should be considered on its particular facts. The origins of or reasons for a person’s obesity are irrelevant for determining disability.

In light of the decision, UK employers should be aware of the risk that obese employees could qualify as disabled.  Where employers are unsure if an obese employee is disabled they should consider obtaining medical evidence from a GP or other medical specialist.

All disabled employees are protected from discrimination and employers 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.  Where an obese employee is disabled, reasonable adjustments may include providing larger chairs or office equipment and reserving a designated parking space close to the employee’s workplace.

Varying employment contracts

Can silence be golden for employers?

Silence

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An employee’s failure to object to a new or varied contractual term does not automatically amount to an acceptance of the change.  However, in certain circumstances, as the Employment Appeal Tribunal (EAT) has recently determined, an employee may have impliedly accepted a contractual variation through their conduct.

Ms Wess had been employed by Science Museum Group (SMG) as a curator. Under her original contract she was entitled to 6 months’ notice.  In 2003 she was sent an entirely new contract containing a reduced notice period of 12 weeks, a new job description and several other changes.  Ms Wess never signed the new contract. Despite raising issues with SMG about her new job grade, she did not object to the new contract and/or, specifically, the reduction in her notice period.  In 2012 she was made redundant on 12 weeks’ notice.  Ms Wess argued that she had never agreed to the reduction in her notice period and brought a claim for wrongful dismissal.

The EAT held that Ms Wess had accepted the new contract and the 12 week notice period.  The EAT took account of the fact that SMG had issued Ms Wess with an entirely new contract, the fact that Ms Wess had queried the change to her grade but not the change in her notice period, her experience and awareness of contractual issues through her trade union role and the fact that she had worked to the terms of the new contract for 9 years. Despite this decision, employers should be wary of relying on implied consent.  Where an employer has failed to obtain written consent to contractual variations, employees may indicate that they are working under protest and subsequently claim for breach of contract, or alternatively consider resigning and claiming constructive dismissal.

Employers should take particular care when introducing changes to isolated terms that do not have an immediate effect, for example when varying restrictive covenants or sick pay provisions (changes to a notice period can be said to have an immediate effect because of the impact on job security).  In these circumstances a Tribunal is likely to look more sympathetically on an employee’s complaint, even where they have failed to raise an objection at the time the change was introduced.

The trouble with Twitter

Employee dismissed after offensive tweets

Twitter

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Social media platforms are now an established and popular way for individuals to stay in touch with each other and for businesses to promote their brand and communicate with customers.  However, while social media has undoubted benefits, misuse of social media can cause substantial reputational damage.  Where the lines between private and professional use are blurred, employers are often unsure of what action they can take.

A recent case before the Employment Appeal Tribunal (EAT) concerned Mr Laws, who was employed by Game Retail Ltd (Game) as a risk and loss prevention investigator.  Mr Laws had responsibility for over 100 Game stores and followed these stores on his personal Twitter account.  In return 65 of these stores followed Mr Laws’ account after being encouraged to do so by the manager of the Preston store.

In July 2013 Game was informed by one store manager that Mr Laws had posted offensive and abusive tweets. Game investigated and found 28 such tweets over a 12 month period.  Although the tweets did not refer to Game, Mr Laws was dismissed for gross misconduct on the basis that the tweets were in the public domain and could be seen by other Game employees.  Mr Laws brought a claim for unfair dismissal.  The Employment Tribunal upheld Mr Laws’ claim at first instance, finding that Game’s decision to summarily dismiss Mr Laws did not fall within the range of reasonable responses open to a reasonable employer in the circumstances.  The Employment Tribunal paid particular regard to the fact that the offensive material was communicated outside of working hours, was intended for private use only and concerned matters unrelated to work. Game appealed this decision.

Upholding the appeal, the EAT found that the initial Employment Tribunal had failed to apply the “reasonable responses” test properly and had not adequately considered whether Mr Laws’ use could be said to be purely private; the Tribunal had failed to give due regard to the fact that the tweets could be viewed by employees of the 65 stores that were following Mr Laws.  It remitted the matter to a fresh Employment Tribunal.

The EAT declined to give specific guidance on dealing with social media related misconduct; noting that this should be dealt with in the same way as any other misconduct and that the fairness of any dismissal will be dependent on a number of factors and the specific facts and circumstances of the case.  Nonetheless, social media does present particular challenges for employers.  Employers should ensure disciplinary policies clearly indicate what will constitute unacceptable use.  Providing employees with purely business accounts, restricting privacy settings and regularly monitoring content posted may also help to reduce the risk of serious reputational damage.  

Considering reasonable adjustments

What is the right approach?

Reasonable adjustments

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Where a disabled employee or job applicant is put at a substantial disadvantage by a provision, criterion or practice (PCP) of their employer or a physical feature of their employer’s premises, the employer has a positive duty to make reasonable adjustments to avoid the disadvantage in question.  Similar duties also apply to businesses offering services to the public.

A recent case before the Court of Appeal concerned First Group, who provide public transport services, and Mr Paulley, a wheelchair user.  Mr Paulley had attempted to board a bus operated by First Group but was unable to do so after a mother with a buggy and child refused to vacate the designated wheelchair space, despite being asked by the driver.  Mr Paulley argued that First Group’s policy of requesting, but not requiring, other passengers to vacate the wheelchair space placed him at a substantial disadvantage compared to non-wheelchair users and that First Group had failed to make reasonable adjustments to avoid that disadvantage.

The Court explained that the first step when considering reasonable adjustments is to identify the PCP, which is the ‘base’ position before any adjustments are made to accommodate disabilities.  Once the PCP is established the key question is whether any adjustments made satisfy the duty to make reasonable adjustments, or whether further adjustments are required, taking into account the Code of Practice issued by the Equality and Human Rights Commission, such as the effectiveness and practicality of implementing an adjustment.

In this case the PCP was a ‘first come first served’ policy.  The practice of asking a non-wheelchair user to vacate the space was an adjustment to that policy.  The Court found that a blanket policy requiring other passengers to vacate the wheelchair space would be impractical to enforce and could cause unreasonable disruption to other passengers.

Although this case did not concern an employment relationship, the Court’s decision is still highly relevant for employers as it sets out the correct approach to assessing whether the duty to make reasonable adjustments has been fulfilled.  What is reasonable for one employer may not be reasonable for another, so employers must always bear in mind their particular circumstances.