magazine
42
Employment Law & You
1.Obesity can constitute a
disability at work
In a long-awaited ruling, the Court of
Justice has determined that obesity
can constitute a ‘disability’, but only
if it hinders the full and effective
participation of the person concerned
in their professional life on an equal
basis with other workers.What does
this mean in practice?
n
Does this mean that anyone who is
obese is considered disabled? No, only
where the impact of obesity has an
effect on normal day to day activities.
n
Will this case be followed in the UK?
Yes, because it is an EU decision — but
how it is interpreted in the UK may be
open to debate.
n
Was obesity covered in the UK
already? Arguably yes, if it were
considered a long-term physical
impairment.
n
What are an employer’s obligations?
For pre-employment there should be no
discrimination on the basis of a person’s
size. There is the possibility that some
cases will arise but we expect those to be
few and far between.
In employment there may be
requests/reasonable adjustments to
consider, e.g. specialist equipment,
allocated parking, bigger portions from
the canteen, supersized lunch breaks.
Where the requirement is reasonable we
would expect that businesses have dealt
with this anyway, particularly if there is a
health and safety requirement, such as a
chair that supports a worker’s weight.
In the termination of employment,
size should not be used unless
reasonable. However, it may be relevant
if, for example, the worker cannot
undertake their duties effectively (say a
firefighter who cannot climb a ladder or
carry a weight).
2. Cap on back-dated holiday
claims
The prospect for significant back
pay claims has receded since the
introduction of the Deduction from
Wages (Limitation) Regulations 2014.
The regulations will limit all unlawful
deductions claims to two years before
the date the ET1 is lodged; and they
explicitly state that the right to paid
holiday is not incorporated as a term
in employment contracts. However,
there may be challenges to these
regulations.
Employers that can reach July 2015
with no claims brought against them
should be able to limit any scope for
back pay. In every case a detailed
assessment on the merits should be
undertaken as there may not have been
a ‘series of deductions’ – and/or the last
‘deduction’ may have fallen more than
three months prior to the claim being
submitted, and so time may have run out
to make a claim. In particular where the
employer has changed payments to be
in line with Bear Scotland and no claim
has been presented, the employee will
have limited opportunity to make a back
pay claim.
With the implementation of FRS 102
in 2015, employers will be obliged to
show liabilities for outstanding holiday
pay within their accounts and will need
to take a view on potential liability for
these types of claims in so doing.
Richard Smith, Croner
head of HR at Wolters
Kluwer, looks at two
recent employment law
developments and assesses
the impact they will have on
UK businesses.
Employment
Law Update
Be careful what you
wish for
New survey reveals risks of offering
genetic screening as a perk
One quarter of UK bosses would like to extend health
screening into genetic testing as they strive to retain
and attract top talent, a new survey has found. A
further 16% would consider screening if it reduced
the cost of key person insurance.
The option is becoming more attractive for businesses
and top employees as the price of full DNA testing
falls and the development of medicines fine-tuned to a
patient’s genetic make-up becomes a possibility.
Yet legal considerations remain a stumbling block,
with 76% of UK business leaders questioned ahead of
the Astellas Innovation Debate 2015 citing potential
legal repercussions as an inhibiting factor. In the UK, it
is a criminal offence to test DNA without an individual’s
consent and European legislation prohibits businesses
from gaining access to their employees’ genetic data.
Baroness Helena Kennedy, QC, Vice President of the
Patients Association and former Chair of the Human
Genetics Committee, suggests these qualms are well
placed, pointing out that genetic screening of employees
could be more Pandora’s box than panacea.
She said: “It’s a testament to mankind’s ingenuity
that genetics and technology are combining to bring the
prospect of personalised medicine much closer. But knowing
the facts about our genes can also bring challenges. For
example, our genetic information could be misused by
insurers, who could over-interpret the information in our
genes, wrongly suspect we are susceptible to some disease
and so not provide us with the kind of insurance we need.
“Similarly, if an employee shared some genetic
information with his or her boss that indicated a higher
risk of, say, cancer or a neurological disease, the employee
would be at higher risk of discrimination in the workplace
in the form of redundancy or being passed over for
promotion. This in turn leaves the employer vulnerable
to accusations of discrimination. And then, on a personal
level, employees might well need professional support if
they become distressed at the prospect of a disease that
they might or might not develop.”
In the Astellas survey,
one in five bosses (22%)
admitted that an employee
who revealed a genetic risk
of serious illness would run
a greater risk of redundancy
and become less eligible for
promotion.
The Astellas Innovation
Debate, organised and
funded by Astellas Pharma
EMEA, took place at
the Royal Institution of
Great Britain on 29th
January 2015. For more
information, visit
www.
innovationdebate.com
.
Tread carefully:
Baroness Helena Kennedy, QC
