Obesity and Back Pay Rulings: Croner Analysis from Wolters Kluwer

blog-publish-date

14 Jan 2015

blog-read-duration

  Richard Smith, Croner Head of HR at Wolters Kluwer, looks at two recent employment law developments and what impact these will have on UK businesses. 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? 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. 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. Was obesity covered in the UK already? Arguably yes if it was considered a long term physical impairment. 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 supported 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). Cap on back-dated holiday claims The prospect for significant back pay claims has now 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 challenge 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.

Free to Download Employer Resources

  • Sample Mental Health Policy

    FREE DOWNLOAD

    Sample Mental Health Policy

    Read more
  • Disciplinary Letter Template

    FREE DOWNLOAD

    Disciplinary Letter Template

    Read more
  • H&S Risks of Sleep in Shifts

    FREE DOWNLOAD

    H&S Risks of Sleep in Shifts

    Read more
  • Cricket World Cup: Dealing with Sporting Events in the Workplace

    BLOG

    Cricket World Cup: Dealing with Sport...

    The 2019 Cricket World Cup will run from 30th May through to 14th July. Matches ...

    Read more
  • What are the benefits of benchmarking?

    BLOG

    What are the benefits of benchmarking...

    Salary benchmarking is no doubt a term you’ve come across, especially if you wor...

    Read more
  • Office Dogs: Good Idea or Bad Idea?

    BLOG

    Office Dogs: Good Idea or Bad Idea?

    So, I was going to write about Brexit this month. But we’re not doing that now. ...

    Read more
  • Numark

    CASE STUDY

    Numark

    Numark serve as a virtual head office for independent pharmacies on the high str...

    Read more
  • Gilmour Quinn

    CASE STUDY

    Gilmour Quinn

    Gilmour Quinn Financial Planning Ltd is, as the name suggests, a small financial...

    Read more
  • Wardman Brown

    CASE STUDY

    Wardman Brown

    "I would say it has has a noticeable impact, in particular it has improved the H

    Read more

Ready to focus on what you do best?

Get your free consultation and speak to an expert today.