obesity may be a disability

Last month I reported the case of Mr Kaltoft, a Danish childminder who was dismissed because he was too big to carry out some of his duties, e.g. tying children’s shoelaces.

We now have the Opinion of the Advocate General of the European Court concerning the issues raised in the case. Although this is not the judgment itself, such opinions are nearly always followed by the Court.

The key conclusion is that obesity is not of itself a disability and therefore protection from discrimination is not available on this basis alone. However, as is so often the case with European decisions and particularly those concerning employment law, that is not the end of the story.

Advocate General Jaaskinen includes in his Opinion a discussion about body mass index (BMI) which opens the door to the possibility that obesity may be treated as a disability and thereby attract protection from discrimination. In essence he suggests that a person with BMI of over 40 is likely to have problems which hinder his or her “full participation in professional life on an equal footing with other employees due to the physical and or psychological limitations that it entails” in which case obesity “can be considered to be a disability”.

Incidentally, having a BMI of over 40 is what is commonly referred to in the United Kingdom as being morbidly obese. There is a handy BMI calculator (based on height and weight) at the BUPA website (free of charge!).

Of course this opens up the question of where to draw the (waist)line! Is someone with a BMI of 39.5 not disabled and someone with 40.5 disabled? I can see room for a great deal of litigation in this regard. Further the Opinion of the Advocate General is precisely that, an opinion, and not a medical one at that. What if a medical expert expresses the view that someone with a BMI of, say, 35 nonetheless suffers from the characteristics identified as establishing disability.


religion and employment

Two cases of note warrant a mention this month. First, a health worker has been found guilty of misconduct following a disciplinary investigation. Victoria Wasteney, a Christian, is a senior occupational therapist working for East London NHS Foundation Trust was found to have bullied a Muslim work colleague.

The allegations made included:

– asking her to pray with her
– giving her a book about a Muslim woman who converted to Christianity, and
– asking her to a sports day at her church

The decision followed a nine months’ suspension. She has received a written warning and has been told that she must not talk about her faith when at work. However, she is appealing the decision with the support of the Christian Legal Centre. The Centre is well known for being involved in a number of the most high profile religious discrimination cases in recent years.

As I reported in early 2011 there is a particular problem with the interaction between work colleagues and those whose religion includes and encouragement or even obligation to evangelise. It is a classic dilemma of competing human rights.

Meanwhile details have emerged of a very unusual case including allegations of sectarianism, not in Northern Ireland but in Scotland Yard. Detective Inspector Paul Armstrong, a Roman Catholic, says that he was routinely subjected to bullying and harassment by his boss, Detective Chief Inspector Mark Roycroft, and Ulster protestant. He maintains that exclusion from meetings, blocking promotion and career progression and numerous untrue statements constituted direct discrimination resulting from sectarian bias. Scotland Yard is yet to decide whether to contest the claim which is due for a hearing in the central London Employment Tribunal in September.


cases proving costly to the public purse

On 22 July news emerged via BBC Newsnight that Haringey Council accounts show that a payment of £679,452 was made to Sharon Shoesmith.
1) Haringey council accounts are out showing £679,452 settlement w Sharon Shoesmith, first revealed in Oct on #newsnight with @jakemorristw

— Allegra Stratton (@BBCAllegra) July 22, 2014

The breakdown reveals salary and related payments amounting to £377,266, £217,266 compensation for loss of office and £84,819 for employer contributions. The Council had already disclosed that it has paid legal costs amounting to £196,000.

Ms Shoesmith has said that she “does not recognise” the figure quoted. The likely reason for this response is that the terms for settlement were set out in a settlement agreement with a confidentiality clause. Haringey has almost certainly breached the clause by disclosing the amounts but they were in a catch 22 because they are at the same time obliged to itemise such expenditure in the accounts. They will probably say that they were legally bound to make the disclosure notwithstanding that the disclosure defeats the purpose of the clause.

In the meantime Caerphilly Council will have paid suspended chief executive Anthony O’Sullivan over £330,000 by the time of his trial for misconduct in public office in January 2015. His suspension commenced in early 2013 when a police investigation was launched. There is a well known problem in progressing disciplinary proceedings while criminal investigations and proceedings are ongoing since employment sanctions cannot be imposed without proper investigations and disciplinary proceedings and it is generally thought inappropriate for criminal and employment proceedings to run in parallel. Of course, to suspend without pay would be likely to indicate a presumption of guilt so the Council really has no option other than to make the payments.

Audit costs add a further £900,000 and £1.5m extra will have been paid to employees as a result of the disputed pay deal.


crackdown on bankers? is it really all it’s cracked up to be?

On 30 July and amid much fanfare the Bank of England’s Prudential Regulation Authority announced what is to be “the strictest industry regulation in the world” with a wide range of civil and criminal sanctions available to be applied against defaulting bank employees.

Headlines included a new criminal charge of “reckless mismanagement” which could lead to imprisonment if banks are not run properly. There is also the prospect of recouping bonus payments for up to seven years in respect of those who are found to have been “guilty of misconduct”.

Recoupments are to apply even if the money has been paid and spent.

Although cautiously welcomed by Anthony Jenkins, chief executive of Barclays, the general industry response has been swift and predictably negative. According to the British Bankers Association the new rules will place the UK banking industry at a competitive disadvantage. They have also trotted out the usual claim that City bankers are paid less than in other major financial centres and there might therefore be a dispersal of talent elsewhere.

Are the new rules really so severe? As far as criminal sanctions are concerned, they will require legislation so will first be subject to parliamentary scrutiny. It is likely to be very difficult to pin the criminal burden of proof – guilt beyond all reasonable doubt – on a specific individual or individuals. However, bankers can already be imprisoned and face unlimited fines for “causing a bank to fail” by taking a “reckless decision”. So is this really the “game changer ” that some have suggested?

As for civil penalties, there are obvious employment aspects. Significantly, although it was considered, the rules will not be applied retrospectively. This is no surprise since, to do so, would have the effect of imposing sanctions for breaches not identified as such at the time.


is obesity a disability?

Under the Equality Act 2010 disability is a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on one’s ability to carry out normal daily activities. According to government guidance “Substantial” is more than minor or trivial – e.g. it takes much longer than it usually would to complete a daily task like getting dressed, and “long-term” means 12 months or more – e.g. a breathing condition that develops as a result of a lung infection.

What is potentially a landmark case was heard by the European Court on 12 June and the decision when delivered could have ramifications that require significant adjustments to working arrangements. Danish child minder Karsten Kaltoft weighs 25 stone. He was sacked by his local authority because he could not perform his duties. As a result of his size he is unable to tie children’s shoelaces.

Of course, the main dilemma here is whether the condition is regarded as self-inflicted or caused by, say, a genetic predisposition. Medical evidence in this regard is likely to prove to to be very contentious. And what of conditions which might have been caused or contributed to by obesity, e.g. diabetes? In Walker v Sita (2013) the Employment Appeal Tribunal noted that 21.5 stone Mr Walker suffered from 16 medical conditions which were compounded by his obesity. The employment tribunal found that he was not disabled since there was not a physical or organic cause of his conditions other than his obesity. The EAT disagreed and held that he was disabled on the basis that his physical and mental impairments were genuine and their cause was irrelevant. However it was noted that obesity in itself did not render him disabled. If the European Court decision goes in favour of Mr Kaltoft such distinctions will no longer matter.

Changes that may have to be implemented include special seating, access to the workplace and the location of car parking places. Further, employees will not be able to be dismissed merely because they are overweight.

In the UK 64% of adults are classed as overweight or obese, of which 23.1% are obese. The number of obese people has trebled in the last 25 years.


are you ready for this? over a quarter of all employees are planning to make flexible working applications

As I reported last month the right to request flexible working is extended to most employees with effect from 30 June 2014. According to a YouGov survey of over 2000 adults carried out for Croner 26% of UK workers plan to do so. However research by Timewise suggests that as many as two in five employees want to work fewer hours or remotely, in addition to the 25% of employees who already work part time (8.18 million currently work 30 or fewer hours per week). In the longer term 70% of employees say that they want to work flexibly at some point in the future.

There is a significant disparity in the availability of part time work between junior and senior posts. 43% of advertised jobs open to flexible working are junior or entry level whereas only 9% of leadership roles and 14% of directorship roles offer flexibility. One of the problems facing applicants for flexible working is that there is a common perception still held by managers that this demonstrates a lack of ambition or less commitment, particularly in SMEs.

This manifests itself in the concern expressed by applicants for flexible working. The Timewise survey revealed that 42% of people who need flexibility worry about when to ask about it in the recruitment process and 52% feel nervous or very nervous about doing so.

From the employers’ perspective research conducted for Weber Shandwick revealed that 11% think that the changes will have a positive effect, 21% a negative effect and 64% think it will make no difference, while 4% don’t know. However 9 in 10 employers say that they welcome questions about flexible working.

Significantly, 75% of employers say that they have had no training on how to deal with flexible working applications.


the mental processes of decision influencers that can lead to age discrimination

In Reynolds v CLFIS (UK) Limited Mr Justice Singh, sitting in the Employment Appeal Tribunal, considered the motivations of individuals, conscious or subconscious, that can lead to discrimination.

Dr Reynolds OBE was employed by Canada Life from 1968 to 1992 as a doctor and insurance expert and, latterly, as the Company’s chief medical officer. In 1992 she was made redundant but continued working on a consultancy basis. However in 2010 the consultancy agreement was terminated by Canada Life. A Mr McMillan had made a presentation to Mr Ian Gilmour, the Company’s most senior employee in the UK. As a result of the presentation Mr Gilmour decided that Dr Reynolds was not delivering the service required and could not remain in her post as chief medical officer. Following discussions between others including the HR manager it was decided that a clean break was required by dispensing with her services altogether.

Dr Reynolds believed that the decision was prompted by age discrimination. At the date of termination she was 73 years old and had worked for Canada Life for 42 years. At the resulting employment tribunal hearing all attention focused on the mindset of the person who took the decision to dismiss. The claim failed and Dr Reynolds appealed on the basis that analysis of the decision to dismiss should not have been confined only to the person who ostensibly took the decision.

On appeal it was acknowledged that the decision to terminate the contract “had been shaped and informed by the views of other persons, in particular a presentation given to the eventual decision-maker”, Mr Gilmour. Accordingly it was necessary to consider the mental processes in the context of age bias not just of Mr Gilmour but also others in the organisation whose views might have had a significant influence on the decision.


minor and spent offences must no longer appear on CRB checks

R (on the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) is a decision of the Supreme Court concerning the disclosure of convictions.

Criminal record checks (commonly referred to as CRB checks) have been commonplace in some employment sectors for many years and for obviously good reasons. However, over the last few years their use has become much more widespread. According the latest available figures 2,981,958 checks were carried out in 2011 and it is likely that the number has increased in subsequent years (estimated 4 million in 2013). There has also been a great deal of concern expressed about the number of inaccurate records held – since 2003 over 19,500 challenges have been upheld.

Another area of concern is that historic offences might unfairly prejudice jobseekers and thereby undermine the objective of having spent convictions. For example, The Guardian reported the case of an otherwise exemplary A grade student who was prevented from training as a doctor at Imperial College because of a “spent” conviction. Majid Ahmed had served four months’ community service when a minor following a conviction for burglary.

The Home Secretary and the Justice Secretary took the issue to the Supreme Court when it was held by the Court of Appeal that prospective employers did not need to be notified about spent convictions.

Under the Rehabilitation of Offenders Act 1974 if someone is asked about his or her criminal record there is no obligation to disclose spent convictions. Further, an employer must not make any decision prejudicial to the individual with reference to spent convictions. This also applies to cautions, warnings and reprimands (which are treated as spent as soon as they are given).

However there are exceptions to these general rules, particularly with reference to certain types of employment and professions. In these cases enhanced criminal record certificates can be obtained which include disclosure of every “relevant matter” on the Police National Computer, including spent convictions and cautions. Incidentally, there are similar concerns about the accuracy of data held on the PNC. 3509 people have been found  to have inaccurate records in the four years to 2012, over the same period, 2918 had the record of the wrong person disclosed in response to a CRB enquiry and 3547 people had the wrong information recorded or passed on by the police at a local level.

In this case the Supreme Court considered “T” to whom two police warnings were issued in 2002 concerning the theft of two bicycles. The warnings were disclosed in 2008 when he applied for a part-time job with a football club and, again, in 2010 when he applied for a place on a sports studies course.

“JB” was 41 when she was issued with a caution in 2001 concerning the theft from a shop of a packet of false fingernails. In 2009, having completed a training course for employment in the care sector, the training organisation told her that it was unable to put her forward for employment when the caution came to light.


golf club shenanigans can prove to be expensive – a very British scandal

Golf club chit chat and generally bad behaviour has frequently resulted in employment tribunal claims. It has often been the case that sometimes well meaning but misguided committee members have caused a great deal of trouble by failing to apply correct employment practices.

Cases include Gorleston Golf Club, Nizels Golf Club and Irvine Ravenspark Golf Club, plus other local cases that we know about but can’t report for confidentiality reasons.

A good example of the level of “misunderstanding” that there can be emerged in the case of Chadwick v Aldeburgh Golf Club. Mrs Chadwick was assistant secretary of the club, located in Suffolk. For those who do not know Aldeburgh it is quintessentially British and renowned for its arts and music festival, founded by Sir Benjamin Britten. She was suspended after mentioning to a lady club captain that members had been gossiping about her and the club secretary, a Mr Bill Beckett. She also said that she had seen the lady captain, 73 year old Juliet Brereton, “trying to squeeze Mr Beckett’s bottom”. It was decided that this behaviour (reporting not bottom squeezing!) was unprofessional and that the remarks were unfounded. As a result Mrs Chadwick was suspended and removed from the club. Two months later she was dismissed for gross misconduct.

She commenced employment tribunal proceedings in which she claimed that she had been bullied by Mr Beckett within weeks of him arriving at the club. She maintained that she had an unblemished employment record for four years prior to his arrival and had received a 10% pay rise in 2011 in recognition of her work. It emerged in evidence that , at his previous club, Mr Beckett was referred to as “Ayatollah” because of his dictatorial manner.

Remarkably, when appealing a written warning Mrs Chadwick was told that she was not a victim of bullying “because there has been no physical violence towards you”. The club captain, Steve Beaumont, noting Mr Beckett’s “deep, loud and somewhat gruff voice” noted that it was “typically South African”. He believed that his voice and attitude “may be forceful but this may be ascribed to his determination to get things done”.

Unsurprisingly Employment Judge Robin Postle observed that the rejection of Mrs Chadwick’s complaint displayed “amazing ignorance, naivety and total misunderstanding of bullying and harassment”.


Vince Cable announces end of exclusivity clauses in zero hours contracts

As I’ve mentioned in numerous recent posts, zero hours contracts have attracted a good deal of attention over the last few months, not least because they are in much more widespread use than many had thought.

Both the government and opposition have had them in their sights, not from the point of view of banning them (or at least not any more), but with a view to eliminating the abuses which are believed by many to accompany them.

One particularly iniquitous aspect of some existing contracts is the requirement to work exclusively for the employer, even though there is no guarantee that work will be provided. It is estimated that some 125,000 people are currently tied to such contracts. The government’s conclusion on completion of its consultation is that this restriction will no longer be permitted.

Announcing the reform, Vince Cable said:
Zero hours contracts have a place in today’s labour market. They offer valuable flexible working opportunities for students, older people and other people looking to top up their income and find work that suits their personal circumstances.

But it has become clear that some unscrupulous employers abuse the flexibility that these contracts offer to the detriment of their workers. Today (25 June 2014), we are legislating to clamp down on abuses to ensure people get a fair deal.

Last December (2013), I launched a consultation into this issue. Following overwhelming evidence we are now banning the use of exclusivity in zero hours contracts and committing to increase the availability of information for employees on these contracts. We will also work with unions and business to develop a best practice code of conduct aimed at employers who wish to use zero hours contracts as part of their workforce.