With Brexit maintaining its position as being the political story on everyone’s lips, Teresa May’s decision to hold a general election on 8th June 2017 took many by surprise. The current government’s tenure will have lasted just over two years, the shortest since 1974.

Too often, the early promises of a nascent government are forgotten. However, our employment law Partner, Ben Stanton, has reviewed the 2015 Conservative manifesto to see how many of its employment law pledges were implemented in that short period:

1.  Increase the personal allowance to mean that a worker working up to 30 hours a week on the minimum wage will not pay any income tax.

Did they do it?

Nearly. The personal allowance currently stands at £11,500.00, whereas a worker on the Living Wage of £7.50 per hour (for those aged 25 and over) would earn £11,700.00 over a 30 hour week.

2.  Instead of being linked to inflation, “permanently link” the National Minimum Wage to the personal allowance, which they propose to raise to £12,500 by the end of the next Parliament, “on course for a minimum wage that will be over £8.00 by the end of the decade”, to “entrench in law” the principle that no worker on the National Minimum Wage should ever pay income tax.

Did they do it?

No, but had the government continued for another three years, it was on course to achieve this pledge.  An increase from the original rate of £7.20 per hour to £7.50 per hour on 1st April 2017 shows that the Living Wage was on course to hit £8.00 in the next three years.  As things stand, the government falls short on both of these targets with the current personal allowance of £11,500.00 and Living Wage of £7.50 per hour.

3.  Fund 3 million apprenticeships, abolishing employer’s national insurance contributions for apprentices under the age of 25.

Did they do it?

Partially:

In 2014/15 there were over 500,000 apprenticeship starts in England and in 2015/16, 509,400.  The numbers of apprenticeships have steadily increased (there were 280,000 at the time of the coalition government in 2010) and continued to rise;

Employer National Insurance continuations for under 25s earning up to £43,000.00 have been abolished.

4.  Remove any obligations of exclusivity from zero hours (i.e. that a worker on a zero hour contract must not be banned from working for alternative employers).

Did they do it?

Yes.  In May 2015, exclusivity clauses within zero hours contracts became unlawful.  However, it was not until 11th January 2016 (with the implementation of The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015) that it actually became an offence for employers to dismiss an employee for refusing to accept such a term, or for subjecting a zero hours worker to ‘any detriment’ if they looked for work elsewhere.

5.  Change industrial action legislation to state that strikes may only occur if supported by 40% of all those entitled to vote.  Also repealing legislation which prevents employers from employing agency staff to cover strike action.

Did they do it?

Yes.  The Trade Union Act 2016 (Commencement No.3 and Transitional) Regulations 2017 came in to effect on 1st March 2017 which, amongst other things

• increased to 50% the voting threshold for union ballots turnouts (while retaining the requirement for there to be a simple majority of votes in favour of industrial action); and
• introduced an additional requirement that 40% of all those entitled to vote in the ballot must vote in favour of industrial action in certain public services such as health, education, fire and transport (see below);

6.  Employers of 250 or more employees will have to publish the difference between average pay of its male and female employees.

Did they do it?

Yes, with a couple of months to spare.  The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 came in to force on 6th April 2017, meaning that employers of 250 or more employees now have 12 months to publish the information on their own website and to upload it to a government website.

7.  Employers of 250 or more employees or who are in the public sector will have to provide their employees with three additional days’ paid leave, for the purposes of allowing them to carry out volunteer work (not outlined in the manifesto).

Did they do it?

No.  Consultation was due to take place this year.  Parliament will be dissolved on 3rd May, after which no further legislation will be passed until after the election.  Any Bills not passed by the date of dissolution will lapse and the next government will have the option to present them again in their current or an amended form.  It remains to be seen whether this is something that the conservatives carry forward in their next manifesto.

If you want to discuss the past or proposed changes to employment law, or any other employment issue, please feel free to email me at ben.stanton@franklins-sols.co.uk, or call our Employment Team on 01908 660966 or 01604 828282.

The Pensions Act 2008 introduced legislation which required employers to provide pensions for their employees. The ‘Auto-Enrolment’ pension scheme means that employees are automatically required to deduct 3% of monies from an employee’s salary in to a company pension scheme, with the employer obliged to make the same contribution.

Whilst the legislation came in to force on 30th June 2012, this only applied initially to employers of 250 or more employees. Those employers who existed at the time with 30 or fewer employees were required to abide by this legislation by 1st April 2017. These obligations now apply to most employers (other than new employers who did not exist until after April 2013).

Despite most employers now having a legal obligation to enrol their employees in to a pension scheme, the Pensions Regulator has announced that around 800,000 UK small businesses are yet to be auto-enrolment compliant. Nineteen businesses have so far been fined for their non-compliance, having failed to comply with demands from the Pensions Regulator, with fines ranging between £500 and £14,000.

If you need assistance with any employment issues relating to your auto-enrolment obligations, or any other employment issue, please email me at ben.stanton@franklins-sols.co.uk, or call our Employment Team on 01908 660966 or 01604 828282.

“Let boors and franklins say it, I’ll swear it”
― William Shakespeare, The Winter’s Tale

In advance of the publication of their manifesto, Theresa May has unveiled an initial list of Conservative employment policies. Most strikingly, she has made a guarantee that European Union employment rights will be protected in the Brexit process. This is the first time that such a guarantee has been made; prior to this, many commentators have guessed as to what Brexit means for employment law but, in truth, no one knows what the outcome will be, never mind how or when it will happen.

The UK has implemented many laws which were prompted and inspired by European Union Law. A number of family friendly rights, the working time regulations, and discrimination legislation were brought in because of the EU and there were concerns amongst some as to whether Brexit would result in the loss of some of these rights. This writer has no such concerns however; it would be political suicide for a party to ask for election on a pledge to worsen rights for workers.

Regardless as to whether or not you take comfort in Mrs May’s ‘guarantee’, we all have different attitudes towards Brexit. Taking Shakespeare as inspiration, you may fall in to one of the following categories:

• Are you a Romeo; believing that poison (Brexit) has taken the life of your Juliet (the UK), you give up instead of just waiting a few minutes longer to see what happens;
• Do you think that Brexit is the bear, pursuing Antigonus (played by the UK) in ‘A Winter’s Tale’, fatally mauling him offstage; or
• Is Brexit the bastard son Don Juan in ‘Much ado about nothing’; just when it seems like all hope is gone, Brexit is unmasked as being just another tyrant and everything works out for the UK in the end?

If Brexit were a Shakespeare play, what do you think it would be? For a discussion on the works of the Bard, or advice on any employment law issue, please email me at ben.stanton@franklins-sols.co.uk, or call our Employment Team on 01908 660966 or 01604 828282.

Carphone Warehouse has recently received one of the most substantial fines recently issued by the ICO as a result of their failure to adequately secure their systems from a breach in 2015. The security breach resulted in over 3 million customers and 1,000 employees having their personal data compromised.

The data to which the cyber attacker gained unauthorised access to included details of many customers’ names, addresses, dates of birth, phone numbers, marital status and even payment details for more than 18,000 customers.

Furthermore, some employees had their names, addresses, phone numbers and car registration numbers also accessed. This lack of security lead to serious concerns regarding the accessed data for these individuals being misused.

Elizabeth Denham, The Information Commissioner said “a company as large, well-resourced, and established as Carphone Warehouse, should have been actively assessing its data security systems, and ensuring systems were robust and not vulnerable to such attacks. Carphone Warehouse should be at the top of its game when it comes to cyber-security, and it is concerning that the systematic failures we found related to rudimentary, commonplace measures.”

The company was found to have failed to adequately protect the personal information of both their customers and employees. There were a number of inadequacies in Carphone Warehouse’s data security which the breach exposed. The fine they received as a result was governed by the Data Protection Act 1998 and the company’s failure to comply with the same.

As of 25^th May 2018, the General Data Protection Regulation (“GDPR”) will come into force and replace the Data Protection Act. The GDPR brings with it a more onerous set of responsibilities for those who are storing and/or processing the personal data of individuals; whether this be employees, clients or customers.

The GDPR also sets out greater fines to be imposed on those who breach the Regulation, with the maximum being 20 million Euros or 4% of global turnover. This is significantly more punishing upon any companies who fail to comply, with previous fines being for a maximum of £500,000 in the United Kingdom. As such, it is even more important that as of the GDPRs implementation, the new requirements are complied with.

Should you require any further support or advice on the GDPR, data protection or privacy matters or would like to arrange an appointment to see one of our Solicitors, please contact us on 01908 660966.

The Acas Early Conciliation Scheme was brought in on 6th May 2014 as part of the coalition Government’s attempts to reduce the number of employment tribunal claims. The scheme requires aggrieved employees to notify Acas of their employment issue prior to filing a claim at the Tribunal, giving Acas up to 6 weeks in which to try to reach settlement with the employer and avoid the claim going any further. If conciliation is unsuccessful, the employee is issued with a reference number which it must quote when bringing a tribunal claim.

As a new concept, compulsory Early Conciliation raised considerable uncertainty as to whether this would be effective in settling disputes. Over one year on, Acas has the following statistics to share relating to how this process is faring:

• Over 83,000 Early Conciliation cases were dealt with between April 2014 and March 2015.
• Three out of four employees and employers agreed to try Early Conciliation.
• Of those Early Conciliation notifications received between April 2014 and December 2014:

63% did not proceed to a tribunal claim.
15% resulted in a formal settlement agreement.
22% progressed to a tribunal claim.

• Of the 22% that proceeded with a claim, more than 51% later settled by way of a formal agreement.

Whilst these figures may not appear to be too impressive, the fact is that an employee must pay a tribunal fee to bring a claim, meaning that a number of these cases will have been brought speculatively with no real desire to bring proceedings against the employer. Acas will consider a 15% settlement rate to show the scheme to be a success.

Early Conciliation cases

In addition to the above statistics, we have also seen a number of judgments relating to Early Conciliation and how this affects the Tribunal process when settlement cannot be achieved early on. Below is a summary of some of the more significant judgments made since its introduction:

1. Claim rejected for failure to comply with Early Conciliation

In the case of Cranwell v Cullen, the Employment Appeals Tribunal (“EAT”) held that the Employment Tribunal was right to reject a claim where the employee had failed to engage in Early Conciliation.

The employee’s representatives, argued that she had not engaged in Early Conciliation due to the sensitivity of the claim which concerned allegations of sexual harassment and abuse. The EAT, whilst sympathetic, held that the rules regarding Early Conciliation were clear; this was a step that the employee was required to take before issuing the claim and she should have advised Acas of her concerns. Acas would likely have quickly concluded that there was no prospect of success and that the employee was then free to bring her claim at the Tribunal.

2. Claim rejected for incorrect Early Conciliation number

In Sterling v United Learning Trust, the EAT decided that a claim was brought out of time after the employee failed to state the correct Early Conciliation number on their claim form.

Whilst the employee had complied with the Early Conciliation prior to issuing the claim at tribunal, the Early Conciliation reference number had not been correctly included on the tribunal claim form. The Judge ruled that it is implicit that the Early Conciliation number is not only included on the claim form, but that it is also accurate.

3. Same rules on Limitation Dates apply even where Early Conciliation occurs before termination

Traditionally, a claimant had three months (less one day) from the date the employment is terminated to bring a claim of unfair dismissal. At its simplest, this limitation date is now extended by the period of time in which Early Conciliation lasts, provided Acas are notified within the original deadline.

However in Chandler v Thanet District Council the claimant instigated the Early Conciliation process before her employment was terminated. The employer argued that the days spent engaging in Early Conciliation prior to dismissal should not be counted, as time could not start to run until dismissal itself. This would have meant that the employee would have been out of time to bring her claim.

The Tribunal disagreed with the employer, deciding that all time spent during Early Conciliation should be added on to the limitation date and the claim was therefore brought in time.

If you would like further guidance on how Early Conciliation works, or require assistance in defending a claim, please feel free to contact myself or one of our experienced Employment Team on 01908 660966 or 01604 828282.

In my blog post in April 2015, I outlined the various employment law proposals made by each political party in their manifestos’ leading up to the General Election in May.

One change that all the main parties seemed to agree upon was that ‘exploitative’ zero-hours contracts should be prohibited, to prevent zero-hours workers being restricted in their ability to work for other employers.

The recently elected Conservative Government has moved quickly to implement its proposal and to bring in section 153 of the Small Business, Enterprise and Employment Act 2015. This Act was passed on 26th March 2015 and is therefore a product of the coalition government, former Liberal Democrat MP Vince Cable being a prominent force in its creation prior to losing his seat at the election.

What does this Act cover?

The Act confirms that any provision of a zero-hours contract which prohibits the worker from working under another contract or under any other arrangement, or which confirms the worker needs the employer’s consent before doing so, is now unenforceable.

There is also a power for the Government to make further provision in the future to protect zero-hours workers from being subjected to a detriment if they do take jobs under other contracts, and to establish a minimum income level below which exclusivity clauses will be unenforceable.

No such legislation has yet been brought into force but this may be something that will be implemented in the future.

It is worth making clear that clauses in ‘ordinary’ contracts of employment which prevent employees from working for any other employer, and to devote their entire time and attention to the interests of their employer, are still enforceable and are unaffected by this legislation.

If you would like your existing contracts of employment or zero-hours contracts reviewed; or would like to discuss how any of the above proposals may affect you or your business, please do contact me on 01908 660966 or 01604 828282 or email me.

There was widespread surprise when FIFA confirmed it was awarding the 2022 Summer World Cup to Qatar; a country:

• whose Summer conditions make the playing of football almost impossible (leading to FIFA deciding to move the tournament to take place in Winter, thus disrupting all the major football leagues around the world),
• where homosexual “acts” are illegal,
• and which does not have the best record in respect of its treatment of migrant workers (since being awarded the World Cup in December 2010, around 1,200 migrant workers have died in Qatar).

 The FBI has now arrested 14 FIFA members on allegations of bribery. These allegations do not just focus on the Qatar decision but are also in relation to other decisions taken by FIFA members over the years. Bribery in the workplace is therefore still a significant issue for some corporations and something about which employers must remain vigilant.

 The Bribery Act 2010 (“the Act”) which came into force on 1st July 2011 makes it an offence for a person to offer, promise or give a financial advantage to another to induce them into carrying out a ‘relevant function or activity’ improperly, or reward them for doing so.

Many types of ‘financial advantages’ are covered under the Act, including gifts, hospitality and entertainment, political or charitable donations, sponsorship and publicity. It is important to note that it is still an offence under the Act to offer or promise a bribe; the bribe does not actually need to be provided. Further still, individuals can be liable even if they unknowingly give or receive a bribe.

Under the Act, employers can also be liable for the infringing behaviour of its staff. To paraphrase FIFA’s current President (at the time of writing) Sepp Blatter: how is an employer supposed to know if its members are involved in bribery? Mr Blatter should be suitably encouraged to note that, under the Act, it is a defence if the employer can show that it had ‘adequate procedures’ in place to prevent bribery. It is therefore extremely important for employers to ensure that appropriate policies are in place to prevent offending action and reduce any such liability.

 In summary, employers should:

• Have a bribery policy in place;
• Make sure that employees are aware of the policy and, where necessary, trained as to the employer’s stance on accepting gifts and hospitality etc.;
• Ensure the policy is followed;
• Make employees aware of the criminal and financial penalties that can be imposed for acts of bribery.

If you would like to discuss this or any other employment issue in any more detail, or would like a bribery policy to be drafted for your company, please contact me on 01908 660966 or 01604 828282 or drop me an  email.

[This is part three of a three part series on the “employer-friendly” policies which the Coalition Government have implemented during their tenure.]

The employer-friendly policies have the aim of reducing potential liabilities on employers in order to encourage continued employment within the workplace. With the announced continued drop in unemployment figures, a fall of 146,000 to 2.02 million in July 2014, this gives added impetus for the Government to suggest that these new policies have assisted that aim.

In this post I will discuss the ACAS Conciliation Process changes which came into force in May 2014.

From 6th May 2014, any employees or workers wishing to bring a tribunal claim against their employers must partake in what is now called a compulsory “Early Conciliation” process. This process is facilitated by the Advisory, Conciliation and Arbitration Service (ACAS) and is aimed at encouraging the parties to reach a settlement to any employment dispute without having to proceed with a claim at the employment tribunal.

How does it work?

The compulsory Early Conciliation process will apply to most claimants, although there are exceptional circumstances where the individual will not need to comply with this procedure. For the majority of cases however, the claimant must now contact ACAS either by telephone or by completing a notification form to advise them of their dispute. ACAS will then contact the individual in order to see whether they would be interested in engaging in Early Conciliation and, if so, a conciliator will then aim to contact both parties in an attempt to reach settlement. If settlement is not possible, ACAS will issue a certificate marking the end of the process. The individual will then need to issue their claim with the tribunal if they did wish to commence proceedings against their employer.

What is the purpose of the introduction of this extra step in an employee/employer dispute?

The Early Conciliation process is an attempt by the Government to reduce the number of claims brought to the employment tribunal table. This follows the Fee-regime, which was introduced in July 2013, has contributed to a 71% drop in claims in April-June 2014 compared with the same period in 2013, and this new Early Conciliation Process is aimed at continuing that downward trend further.

Are you considering making a claim against your employer and would like to talk it through? Please feel free to drop me an email or give me a call on 01908 660 966.

Are you an employer? Have you noticed that this particular change has helped reduce the claims that you have received from your employees? I would be interested to hear your feedback.

This coming general election has the potential to break the three party dominance of British politics, with a number of newer and smaller parties tipped to make significant gains. With an increase of alternatives, how will you decide how to cast your ballot? Will you be swayed by the policies, personalities or even the quality of the sausage roll provided by your local candidate?

Whilst the economy, NHS and immigration may be headline issues, in this blog post I am focusing on the employment law changes that are being proposed by the parties. In reviewing the changes that are being proposed by the next government, it is important to review the employment law changes the coalition led Government have made during its term:

• Increasing the minimum period of service (in most cases) for which an employee must be employed to gain protection from being unfairly dismissed, from one to two years;
• Introducing fees when bringing claims at an employment tribunal.
• Allowing all employees, regardless of whether they have childcare responsibilities, to request a flexible working arrangement;
• Shared parental leave – a mother or primary adopter is able to end their maternity or adoption leave, or commit to ending it at a future date, and share the untaken leave with the other parent. This will enable mothers and primary adopters to return to work before the end of their leave without sacrificing the rest of the leave that would otherwise be available to them, allowing the other parent to also receive any remaining paid leave.
• Continuing to increase the national minimum wage on a yearly basis, which currently stands at £6.50 per hour for employees aged 21 years or over.

Whilst the introduction of employment tribunal fees has perhaps been the most employer-friendly policy that was implemented, it can be seen that the Government has also brought in a number of employee-friendly policies.

What now for employment law?

Although only a handful of manifestos have so far been published, we have done the hard work for you and reviewed the employment law proposals that each party have made in the run-up to the election. In alphabetical order, with no political bias, the proposals are as follows:

1. Alliance

• A comprehensive overhaul of apprenticeships and youth training in Northern Ireland.

2. British National Party

• No specific employment law policies. Instead, the promise is to strengthen the economy by reducing foreign imports, with the aim,

“That our manufactured goods are, wherever possible, produced in British factories, employing British workers. When this is done, unemployment in this country will be brought to an end and secure, well-paid employment will flourish”.

3. Conservative

•  Increase the personal allowance to mean that a worker working up to 30 hours a week on the minimum wage will not pay any income tax.
• Instead of being linked to inflation, “permanently link” the National Minimum Wage to the personal allowance, which they propose to raise to £12,500 by the end of the next Parliament, “on course for a minimum wage that will be over £8.00 by the end of the decade”, to “entrench in law” the principle that no worker on the National Minimum Wage should ever pay income tax.
• Fund 3 million apprenticeships, abolishing employer’s national insurance contributions for apprentices under the age of 25.
• Remove any obligations of exclusivity from zero hours (i.e. that a worker on a zero hour contract must not be banned from working for alternative employers).
• Change industrial action legislation to state that strikes may only occur if supported by 40% of all those entitled to vote. Also repealing legislation which prevents employers from employing agency staff to cover strike action.
• Employers of 250 or more employees will have to publish the difference between average pay of its male and female employees.
• Employers of 250 or more employees or who are in the public sector will have to provide their employees with three additional days’ paid leave, for the purposes of allowing them to carry out volunteer work (not outlined in the manifesto).

4. DUP

• No specific employment policies at present.

5. Green

• Increase the National Minimum Wage to the Living Wage of £10.00 per hour by 2020. (N.B. the current UK Living Wage is £7.85 an hour, £9.15 per hour in London).
• “Restore the public sector, creating over one million good jobs that pay at least the living wage”.
• Ban “exploitative” zero-hours contracts (not outlined in its ‘mini manifesto’).
• Introduce a maximum 35-hour working week (not outlined in its ‘mini manifesto’).

6. Labour

• Introduce a new 10p tax threshold.
• Abolish the employment tribunal fees regime brought in by the current Government.
• Raise the National Minimum Wage to “more than” £8.00 per hour by October 2019.
• Ban “exploitative” zero-hours contracts. Workers on zero hours contracts will have the right to a ‘regular contract’ if they work regular hours for more than 12 weeks.
• Introduce “Make Work Pay” contracts, giving tax rebates to businesses who sign up to paying the Living Wage in the first year of a Labour Government. Publicly listed companies will be required to report on whether or not they pay the Living Wage.
• “Guarantee” an apprenticeship to every school leaver that “gets the grades”. Every firm getting a major government contract, and every large employer hiring skilled workers from outside the EU, will be required to offer apprenticeships.
• A requirement for there to be an employee representative on the remuneration committee when deciding pay packages for executives.

7. Liberal Democrats

• “Expanding” Shared Parental Leave, extending paternity leave from 2 to 6 weeks as a ‘use it or lose it’ month to encourage fathers to take time off with young children. An “ambition” for all employees to be entitled to this benefit from the first day of employment.
• Requiring companies with more than 250 employees to publish details of the different pay levels of men and women. By 2020, they will require those companies to also publish the number of people paid less than the Living Wage and the ratio between top and median pay.
• “Improve enforcement action and clamp down” on any employers failing to pay the National Minimum Wage by reviewing practices such as unpaid internships.
• Pay the Living Wage in all central government departments and their agencies from April 2016.
• “Reviewing” employment tribunal fees to ensure they are “not a barrier”.
• Regarding zero hours contracts, they will create a formal right to request a fixed contract and have a consultation on the introduction of a right to make regular patterns of work contractual after a “period of time”.

8. Plaid Cymru

• Increase the National Minimum Wage to the same level as the Living Wage by 2020.
• Ban “exploitative” zero-hours contracts.
• Companies with more than 500 employees to have an elected employee representative on a ‘supervisory board’.
• A “fair pay’ scheme” will be introduced to link the pay of employees within a company to, “prevent spiralling executive pay”.
• A “review” of the employment tribunal fees regime.

9. Respect

• No specific employment law policies at present.

10. SDLP

• Banning “exploitative” zero hours contracts, with continued support for, “any endeavour such as this that aims to increase the security and prosperity of employees”.

11. Sinn Fein

• No specific employment policies at present, committing to economic growth across Ireland to “ensure a fair recovery for all”.

12. SNP

• Raise National Minimum Wage to £8.70 by 2020 and increase the number of accredited “Living Wage” employers.
• Create 125,000 modern apprenticeships.

13. UKIP

• Allow British businesses the right to choose to employ British citizens first over other nationalities.
• Enforce the National Minimum Wage and reverse cuts in National Minimum Wage inspectors in both England and Wales.
• Amend the Working Time Directive, the contents of which, ”actively restrict the British work ethos and therefore our economy”.
• Reforms to zero-hour contracts, including a blanket ban on exclusivity clauses. Also, businesses hiring 50 people or more will have to give workers on zero-hours contracts either a full or part-time “secure contract” after one year, if the worker requests it.
• Make St George’s Day in England, and St David’s Day in Wales, a Bank Holiday.
• Review all legislation and regulations from the EU and remove those hampering British competitiveness.

If you would like to discuss the above or any other employment law issue, please feel free to drop me an email or give me a call on 01908 660 966.

A recent discrimination case, heard in the Danish District Court, has led to the possibility that obesity could be classed as a ‘disability’.

The claimant, Mr Kaltoft, worked as a child-minder for 15 years, until he was dismissed in November 2010. Mr Kaltoft who, according to data from the World Health Association, is considered to be severely obese, argued that he had been dismissed because of his obesity. The question of whether obesity could fall within the scope of the Equal Treatment Framework Directive was put to the European Courts of Justice for its comments.

The Equality Act 2010 provides that a person has a disability for discrimination purposes if they have a “physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Advocate General Jaaskinen has suggested that not every obese person would fall within the definition of disability but could very well do so; it must represent a limitation that hinders a person’s full and effective participation in professional life on an equal basis with other workers. As such, he commented that whether obesity would fall within the definition of disability would depend on the severity of the condition and, that only in the more severe cases, would it likely create limitations in terms of mobility and endurance for the purpose of the Directive. It was added that it would not matter if the obesity was self-inflicted due to excessive food and that it should apply regardless of whether the obesity was due to excessive food intake or due to a metabolic or psychological problem.

Whilst we await a formal decision from the European Court of Justice, it is likely that this will follow the opinion of the Advocate General. Whereas previously, an employer could seek to subject an obese employee to less favourable treatment (or even dismiss them), it is possible that such behaviour will soon be considered to be an offence.

Have you come across a case in your working environment where you witnessed someone being treated unfairly because of their weight? I would be interested to hear your feedback on how this impacted the person (employee) and whether they took any formal steps to make a claim against their employer.