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Employment Bulletin – August 2014

Can obesity be a disability, giving rise to employment protection?

In the European case of Kaltoft v The Municipality of Billund, the Advocate General issued an opinion on this under the Equal Treatment Framework Directive. He said that obesity may only amount to a disability if it is "severe".

The Advocate General thought it probable that only obesity with a Body Mass Index (BMI) of over 40 would have a real impact on a person's ability to participate in their work life to such an extent that it would be severe.

Employers will therefore need to be aware that whilst there is not any free-standing law against obesity discrimination, if obesity severely hinders an employee's ability to participate in their work, they could have the protection of disability discrimination law.

"Worker" protection for LLP members
The question of whether a member of a limited liability partnership (LLP) is a "worker" has been recently determined. The case of Clyde and Co LLP v Bates van Winkelhof was heard in the Supreme Court which found that a LLP member is a "worker".
As a "worker", a LLP member has the right not to: be subject to a detriment for whistleblowing, suffer unlawful deduction of wages, be subject to a detriment for exercising rights under the Working Time Regulations 1998 and be treated less favourably in part-time work.

The consequence of poor drafting - restrictive covenants

Restrictive covenants aim to restrain the activities of employees for a period of time after leaving their employment. They are drafted by the employer (or their advisers) and often entered into at the beginning of the employment relationship.

Can a court re-write a restrictive covenant which does not make sense? In the case of Prophet v Huggett, the Court of Appeal said "no". The court decided that this was not a case of the clause being merely ambiguous; rather, the clause was simply badly drafted. As a result, the clause had to be read as it had been drafted and this meant that the clause was unenforceable against the ex-employee.

This is an important reminder to companies and their advisers that the drafting of covenants requires skill and care.

Flexible Working Regulations 2014

On 30 June 2014, the right to make a request for flexible working was extended to any employee who has been employed for 26 weeks or more. Prior to this change, only parents of children under 17 (or 18, if disabled) and certain carers could make the request.

Employees can make up to one request per year. The employer has a period of three months from receipt of the request in which to consider it, meet with the employee and relay their decision in writing to the employee, including any appeal. The request can be refused on any of eight specified business grounds.

Zero hours contracts

Vince Cable, Business Secretary, has announced that he plans to ban exclusivity clauses for employees on zero hours contracts. Exclusivity clauses prevent an individual from working for another employer even when there is not any work guaranteed by the employer who wishes to impose the exclusivity clause. The proposed ban will allow workers to look for additional work to boost their income.

Please note that not all changes or developments in employment law can be covered by these bulletins. If you require any advice in relation to these or other employment issues please do not hesitate to contact us.

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