Employment Law Case Update - January 2015
Burnetts' employment law solicitors look at the latest case law updates.
Is obesity a disability under EU law?
A recent European Court (ECJ) decision has confirmed that it could be.
The employee in question, Mr Kaltoft, was a clinically-obese childminder for a local council in Denmark. He was dismissed due to redundancy but he alleged that his obesity was a factor and that he should, therefore, be able to bring a case for discrimination.
Obesity itself is not currently a protected characteristic. Mr Kaltoft argued that it should be but the ECJ decided against him and found that obesity was not protected in its own right.
However, Mr Kaltoft had also argued that obesity should be classed as a disability such that he was entitled to protection under the rules against disability discrimination even if his obesity did not protect him in and of itself.
The ECJ felt that it had been shown that, in certain circumstances (including Mr Kaltoft’s) obesity lead to such limitations on a person’s day to day activities that there could be a barrier to full and effective participation “in professional life”. THE ECJ felt that obesity could, in such cases, be described as a physical impairment and that, as such, if the other requirements for disability were fulfilled (i.e. that the condition was substantial and long term) obesity could be classed as a disability and could offer protection as sought by Mr Kaltoft.
The ECJ stated that the cause of the obesity was irrelevant, so someone who became obese due to a poor diet and lack of exercise should receive the same protection as someone whose weight gain was down to a recognised illness.
Whilst this judgment doesn’t actually change the law, it is still is an important decision. Having said that, employers shouldn’t panic too much. To qualify for protection under the Equality Act, an employee will still need to demonstrate that their obesity has had such a significant impact on their day to day activities that they should be afforded that protection. It is not certain that all obese employees will be able to do so. However, employers will have to be more mindful of weight issues in the future and, in particular, will have to have the prospect of reasonable adjustments in mind whenever an employee’s weight becomes such an issue that their ability to perform in their role is compromised. In addition to which, employers will have to be more alert to the risk of harassment claims. In future, employers will need to be able to show that they took active steps to prevent any harassment related to an employee’s weight otherwise the employer could face a disability discrimination claim.
Any employers who would like to consider whether their policies or procedures should be amended to account for this decision or who are dealing with obesity related issues at present, and who would like advice on the impact of this decision, should contact Natalie Ruane at Burnetts Solicitors on 01228 552222.
Can an employer dismiss for offensive tweets on an employees personal account? It depends on the content said the Employment Appeal Tribunal (EAT) in Game Retail Ltd v Laws.
Mr Laws was an employee of Game Retail Ltd (Game). He had a personal twitter account and was reported by another member of staff for making offensive tweets on that personal account. Game investigated and found 28 tweets which they considered to be offensive because of, for example, use of expletives and obscene language.
Following a disciplinary process to consider the tweets, Mr Laws was summarily dismissed for gross misconduct. When his appeal was unsuccessful, he brought a claim for unfair dismissal.
The Tribunal supported Mr Laws deciding that the decision to dismiss had not been within the band of reasonable responses because the tweets were posted on a private account and it had never been established that any member of the public nor any employee of Game had seen the tweets. In addition to which, the Tribunal was concerned that Game's disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.
The EAT was more sympathetic to the employer. The EAT held that the Tribunal had failed to fully consider the impact of the fact that Mr Laws’ tweets were going out to Game stores and therefore other Game employees. The EAT found that a reasonable tribunal would have taken into account the fact that Mr Laws' knew that his tweets could be seen by staff and potentially customers. The EAT decided that, although a balance had to be struck between an employer’s desire to protect its online reputation and an employee’s right to freedom of expression, on the facts of this case, the EAT did not think that Mr Laws' tweets could be considered to be private despite the fact that they were posted from his personal Twitter account and in his own time. The content of the tweets were mostly work related and so, on this occasion, the EAT felt that the balance should be found to fall in favour of the employer.
More importantly for employers, the EAT found that Game didn’t have to prove that anyone had been offended by the material that Mr Laws’ had posted. For the EAT, the correct question was whether Game had been entitled to reach the conclusion that the tweets might have caused offence. As someone had complained, the EAT felt that Game had crossed that threshold in this case.
For employers, this decision is positive. It reinforces that the private nature of the account is not important; it is the content that matters. The more closely work related that content, the more right the employer has to control that content but where employees set up and keep their accounts personal, action may be more difficult. The failure to have a social media policy won’t be fatal but being able to say that the employers position was clear and well known will always make things easier. Therefore employers would be wise to invest in a social media policy and to check that any existing policies cover private as well as business accounts. Any employers wanting help with this or who are dealing with social media issues should contact Natalie Ruane on 01228 552222.
About the author
Natalie leads the Employment Law & HR team and specialises in education.
Published: Monday 26th January 2015