January 2015 bulletin

Obesity can be a disability

Kaltoft v Billund

After some speculation, the decision is in: the effects of obesity can sometimes amount to a disability.

The European Court of Justice (ECJ) reached this conclusion following a referral from a Danish court in Kaltoft v Billund. The case concerned a childminder who claimed that his obesity was a factor in his redundancy.

What the ECJ has said is that if someone’s obesity causes them to have a physical or mental impairment which satisfies the legal definition of disability, they could be protected by discrimination legislation. So obesity, by itself, doesn’t confer legal protection, but its effects could render a person disabled for employment law purposes.

Not every obese person will be disabled. But those who are unable to participate in professional life on an equal basis with other workers could well be. This will have to be judged on a case-by-case basis, focusing on the effect of a person’s obesity, rather than the cause or extent of the obesity itself.

What does this mean for employers? Well, you may need to become more aware of the way in which obesity affects your workers. You might look to take greater steps to promote healthy lifestyles for the obese. And, on a legal as well as a practical and mindful level, consider making reasonable adjustments to working conditions so that overweight workers are not at a disadvantage compared with other workers. It could mean reconfigured workstations, parking spaces or new working patterns; the solution will be dictated by the circumstances.Similar steps may be required for employees who are drastically underweight. Ultimately, it’s about levelling the playing field.

Pensions auto-enrolment

January 2015 delivers another important date in the ongoing auto-enrolment timetable.

We’re in the middle of a staged introduction of this pensions initiative which requires employers with at least one employee (meeting certain criteria) to automatically enroll them into a pension scheme. The largest employers should already have done it. On 1st January 2015, it’s the turn of employers who have 58 PAYE scheme members. More staging dates will follow.

If you haven’t started thinking about auto enrolment, make it your New Year’s resolution. The rules are horribly complex but, in essence, employees who are aged between 22 and state pension age, who earn at least £10,000 per year and who work in the UK are entitled to be enrolled on your pension scheme from your staging date, so check when this is. You need to work out who is eligible, choose your pension provider and begin the important task of communicating this to your workforce.

There are processes to be designed, contribution levels to be decided, payroll systems to be aligned and staff to be brought up to speed on the changes. Getting to grips with this as far in advance of your staging date as possible is your best bet. But don’t panic; talk to me.

Holiday pay claims limited

We’ve got a new set of regulations which take care of what, for some employers, was the worrying possibility of facing large, backdated holiday pay claims.

The Deduction from Wages (Limitation) Regulations 2014 limits holiday pay claims to two years before the date the ET1 claim is lodged with the tribunal. The Regulations apply to all unlawful deductions claims, with some exceptions – claims for SMP, SSP and guarantee payments, for example. The Regulations also make clear that the right to holiday pay is not incorporated as a term in employment contracts – this is to avoid employees sidestepping the tribunal and going to the County Court where the limitation period is 6 years.

They come in the wake of Bear Scotland v Fulton which decided that compulsory non-guaranteed overtime should be included in holiday pay calculations. Although the case put in place some important restrictions on claims, there are concerns that it might be overturned. But by limiting in legislation the extent of claims to a two-year period, the Regulations should provide some comfort to employers.

While it may be breathe-a-sigh-of-relief time, a word of caution: there is currently a window of opportunity for astute employees to take advantage of a brief transitional period. The Regulations only apply to ET1s presented on or after 1 July 2015. So there is some potential for claims, stretching back longer than two years, to be issued now. Claimants would however need to clear the hurdles put in place by Bear Scotland and show a series of deductions, which isn’t as easy as it sounds.

Redundancy and maternity leave

Sefton Borough Council v Wainwright

Ms Wainwright was on maternity leave when her job was made redundant. A new role was created and allocated to her colleague. She claimed automatic unfair dismissal, based on the requirement in the Maternity and Parental Leave Regulations for employees on maternity leave to be offered a suitable available vacancy where there is a redundancy situation.

She won her unfair dismissal claim. And a useful point emerged which is that it’s not necessarily discriminatory for an employer to fail to offer someone like Ms Wainwright the alternative position. Although she had been treated unfavourably, it wasn’t necessarily because of her pregnancy or maternity leave.

So while it is automatically unfair to fail to offer a suitable available vacancy to a woman on maternity leave in a redundancy situation, it shouldn’t be assumed to also be discriminatory. This is significant in the context of compensation; unfair dismissal is capped, but there is no limit on the amount that can be awarded in discrimination cases.

Time limit in detriment cases

McKinney v London Borough of Newham

When an employee claims to have suffered a detriment because of having made a protected disclosure, they have three months in which to bring a tribunal claim. But when does the clock start ticking?

Mr McKinney brought a claim alleging detrimental treatment caused by his employer’s decision to reject his grievance. Should he have brought the claim within three months of the employer’s decision, or – as he had done – within three months of the date he learned about that decision by receiving his appeal letter?

Time ran from the date the employer took the decision to reject the grievance, the Employment Appeal Tribunal held, and not when Mr McKinney was notified of it. The claim had therefore been brought out of time.

A useful point for employers to bear in mind, and a reminder of the strict rules on the timing of claims.

Restrictive covenants under consideration

Re-use Collections v Sendall & May Glass Recycling

Changing employees’ terms and conditions presents a number of pitfalls for employers. Rather than impose new arrangements, there’s a bargain to be struck; if the terms are to be less favourable to the employee, for example, then this usually calls for some sort of benefit or other sweetener (known as consideration). It’s an important point of contract law.

In the Re-use Collections case a question arose over the status of restrictive covenants. Specifically, could the employer rely on covenants which it had introduced to the employee’s contract, but for which it hadn’t offered any new consideration?

Mr Sendall worked for a family recycling business for many years without having a written contract. When Re-use took the company over, it issued a contract containing non-solicitation, non-dealing and non-compete clauses which Mr Sendall signed.

Not long after, he left to work for a competitor. Re-use wanted to enforce the covenants but the High Court held that it couldn’t. Mr Sendall had not had “some real monetary or other benefit” for the contract variation, the Court said (and the covenants were unreasonably long in duration, in any event).

Re-use had argued that his benefits package, which included a pay rise, amounted to consideration, but the Court disagreed. The new contract confirmed mainly existing benefits and there was nothing to say that the pay rise was unique to Mr Sendall – or that it was linked to the new terms to which he was agreeing. It was significant that the employer had not made it clear that the pay rise, or his continued employment, for example, was conditional on Mr Sendall accepting the new employment terms.

So Mr Sendall had not received a separate benefit linked to the change in his contractual terms. Bear this in mind when looking to amend terms and conditions. Make sure you give some sort of valuable consideration (a signing bonus, or perhaps extra holiday) and make clear that the employee is getting that benefit as a condition of accepting the new terms.

And, as always, take care over the wording of restrictive covenants.

Offensive tweets and unfair dismissal

Game Retail Ltd v Laws

Mr Laws was Game’s risk and loss prevention investigator. He opened a Twitter account (which didn’t specifically link him to his employer) and began following the stores for which he was responsible so that he could monitor inappropriate activity. Sixty-five Game stores subsequently followed Mr Laws, after one of its managers encouraged them to do so.

But it was Mr Laws himself who got into hot water for posting offensive tweets. He was dismissed but initially won his unfair dismissal claim. Dismissal was not within the band of reasonable responses, the tribunal said. The tweets had been posted using Mr Law’s own phone, outside working hours, and for private purposes. It hadn’t been established that any member of the public had access to Mr Law’s Twitter feed and had connected him with the company. Also relevant was the fact that Game’s disciplinary policy didn’t specifically say that use of social media in this way could be treated as gross misconduct.

The Employment Appeal Tribunal (EAT) disagreed. Mr Laws had not attempted to ensure that his tweets only went out to a private audience. He hadn’t set up two accounts (one personal, one professional), nor had he adjusted his settings to restrict his followers. And he was knowingly tweeting in the context of having some 65 of the Respondent’s stores following his feed – and on the recommendation of a store manager. It therefore couldn’t be considered private usage.

A new tribunal will now decide the question of whether dismissal was within the band of reasonable responses.

The EAT steered away from issuing guidance on misuse of Twitter. Each case is different. But what I can say is that these are some of the important things to take into account:

• what the tweets say
• the employee’s settings – have these been restricted?
• the association that may be made between the employee and the employer (not just in the profile section, but throughout the Twitter feed)
• use of separate accounts for personal and work purposes
• what the company disciplinary policy says about sanctions for social media misuse.

Similar considerations apply with other forms of social media such as LinkedIn, Facebook etc. Please speak to me if you think your disciplinary or social media policies need to be reviewed.