Obesity and Back Pay Rulings: Croner Analysis from Wolters Kluwer

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14 Jan 2015

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  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 a 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.

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