Asda start the process against Age Discrimination Regulations

Asda get a head with Age Discrimination by taking the date of birth off all UK application forms. Do other Companies need to follow...

Sally Laughton an Employment expert at Andersons Solicitors comments “Asda has taken a cautious approach by removing dates of birth from application forms. However, companies do need to review all of their policies and importantly their recruitment policies including application forms to ensure that they are not perceived to discriminate on the grounds of age.

With 1 month to go until the new regulations come into force, companies need to check their policies and procedures as a matter of urgency.

We’re finding a last minute surge with clients contacting us regarding this as it seems they’ve put it to the back of their finds until now!”


Sally Laughton is a Solicitor within the Employment Department at Andersons Solicitors in Nottingham, she can be contacted on 0115 988 6736 or email slaughton@andersonssolicitors.co.uk

We produce FREE monthly electronic newsletters including; Private Individual, Business and Employment Law. You can register for your copy online from our website
www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.

Getting paid for sleeping on the job

Can someone really be paid for working when they’re tucked up in bed fast asleep? Or sitting at home relaxing?

Following recent decisions by the Employment Appeal Tribunal and the European Court of Justice, the answer is yes, although anyone thinking they can suddenly cash in on a cushy number may end up being very disappointed. It all depends on the circumstances.

The EC Working Time Directive defines working time as any period in which a worker “is working, at his employer’s disposal and carrying out his activity or duties”.

The European Court of Justice has helped to fine tune that definition with some key rulings stating that staff who aren’t actually doing anything for certain periods may still be classified as working under the directive if they are “on call” at the request of the employer.

For example, in one case the ECJ ruled that time spent by doctors “on call” at their medical centre constituted working time. A second case took that principle a step further when the court ruled that time on call at a place determined by the employer should count as work time even if the employee was allowed to sleep or relax.

It wasn’t long before these rulings impacted on the decisions of Employment Appeal Tribunal in Britain. One case involved a hotel guest care manager called William Anderson. Mr Anderson was required to sleep over at the hotel so that he would be available to deal with emergencies such as fires and floods.

It was an important part of his job and on one occasion he was disciplined because he left the hotel for half an hour one night during a sleepover period. Mr Anderson believed he should be paid for these sleepovers and took the case to an employment tribunal.

The tribunal ruled against him saying that he was not at the hotel’s disposal during these periods and so therefore was not at work and not entitled to be paid. That decision was then overturned by the Employment Appeal Tribunal which, taking its lead from the European Court of Justice rulings, said it was clear that an employee should be considered to be working if his employer obliged him to be on their premises for their purposes. This applied even if he was asleep.

In another case, the Employment Tribunal had to consider whether a residential care manager was working and therefore not taking rest periods under the meaning of the regulations while she was on call in a flat provided for her by her employers at her place of work.

The care manager worked a four-day week and was expected to provide 24 hour on site cover during this period. She brought a claim on the basis that she didn’t get 11 hours consecutive rest in each 24-hour period, contrary to the Working Time Regulations. Neither did she get an uninterrupted 20-minute break when her working day exceeded six hours.

In a further twist she claimed that, on the basis of her working a 96-hour week, she wasn’t receiving the minimum legal wage.

The woman’s claims were upheld by the Employment Appeal Tribunal. It ruled that all the time she was on-call amounted to working time and could not be classed as rest periods. She did not get 11 hours consecutive rest in each 24-hour period. HH Judge Richardson said she was also entitled to an uninterrupted rest period of at least 20 minutes. She was also entitled to know at the outset that she would not be interrupted during those 20 minutes. This clearly could not be the case if there was a chance that she would be called to an emergency.

The EAT took into account the fact that she was obliged to remain within a short distance from work and carry her mobile phone with her at all times. It meant she was never really off duty.

Having established that all her time at work should be considered as working time the appeal tribunal ascertained that she effectively worked 96 hours a week. When her weekly salary was divided by 96, it was found that her employers were not paying her the minimum wage.

The Employment Appeal Tribunal has now referred the case to another tribunal to decide how these anomalies should be rectified.

The cases have implications for all employers who require staff to be on call at various times. It can be something of a grey area so anyone in any doubt should seek legal advice to avoid difficulties in future.

Sally Laughton is a Solicitor within the Employment Department at Andersons Solicitors in Nottingham, she can be contacted on 0115 988 6736 or email slaughton@andersonssolicitors.co.uk

We produce FREE monthly electronic newsletters including; Private Individual, Business and Employment Law. You can register for your copy online from our website
www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.

Fat people have rights too – especially at work

As the government appoints a Minister of Fitness to tackle obesity there are signs that many ‘larger’ people have had their fill of criticism and are ready to stand up for their rights, especially at work. Employment lawyer Lorraine Sansom explains why bosses may need to tread lightly with the overweight in future.

Fat people are having a tough time at the moment and are in danger of overtaking smokers as the kicking boys of society.

Recent research by the Chartered Institute of Personnel and Development found that many firms discriminated against larger figures because they felt that obesity indicated laziness and lack of drive.

A survey carried out by Personnel Today magazine found that 93 per cent of the 2000 firms questioned would rather appoint a job applicant of normal weight than someone who was obese but otherwise had the same qualifications and level of experience. Half the firms thought obesity affected productivity and that overweight people lacked self-discipline.

Ten per cent of firms were even reluctant to let an obese employee meet a client. It all adds up to a potentially dangerous prejudice towards a large part of the workforce. By 2010, it’s likely that more than a third of all British adults may be classed as obese.

As the obesity figures rise, employers are likely to face more claims of discrimination from staff who feel they have been treated unfairly because of their weight.

The warning signs are already there. Recently, a postman who weighed 25 stone and was unable to fit into his van won a claim for unfair dismissal. Medical reports confirmed that he was fit to work so he was reinstated and awarded £24,000 compensation.

Yet obesity can present real problems for employers. According to the National Audit Office, 18 million working days were lost to sickness due to obesity in 1998, the last date for which figures are available. The overall cost to the economy and society was over £2bn.

Unlike America, there is no specific law in Britain outlawing discrimination on the grounds of obesity and so far the government has not announced plans to introduce one. Nevertheless, firms could still find themselves facing legal action if they discriminate against overweight employees because there is already considerable protection under existing legislation.

The most dramatic change in the last year came with Disability Discrimination Act 2005. It removed the previous requirement that mental impairments had to be clinically well recognised before they could be classed as disabilities. It means that obesity could now be classed as a disability if it can be shown that it is caused by anxiety, depression or an eating disorder.

Obese people might also be classed as disabled under the Act if their obesity causes illnesses such as diabetes or heart disease.

In these circumstances an employer would have to make reasonable adjustments to meet the needs of the overweight person as required by the Disability Discrimination Act. If they fail to do so then an employee who feels they’ve been treated unfairly could bring a case of discrimination on the grounds of disability.

There is, however, an obligation on employees to make sure they are doing everything they can to modify their behaviour so they can carry out their duties properly. For example, if there is no medical reason why an obese person shouldn’t eat more healthily and take more exercise then a tribunal may find that they are not disabled and not entitled to protection under the act.

Apart from the disability act there might be scope for legal action on the grounds of sex discrimination and equal pay. A recent study by researchers at Guildhall University showed that overweight women were paid less than their slimmer colleagues. The same discrimination did not affect overweight men.

Employment law relating to dismissal might also offer some protection. For example, if an obese employee was bullied or generally treated unfairly he might be entitled to claim constructive dismissal.

In spite of all the potential pitfalls, however, employers are entitled to dismiss employees whose obesity prevents them from doing their job properly. However, firms should tread carefully before taking any disciplinary or dismissal procedures. It is vital to first check if there is a genuine medical reason for the obesity which might classify the employee as disabled.

The employee should be offered help to lose weight and given time to do so. He should also be warned at the beginning of the process that failure to lose weight could result in dismissal.

As in all matters of staff relations, it is essential to follow the correct procedures.

Lorraine Sansom is a Partner in the Employment Law Department at Andersons Solicitors in Nottingham, she can be contacted on 0115 947 0641 or email info@andersonssolicitors.co.uk

We produce FREE monthly electronic newsletters including; Private Individual, Business and Employment Law. You can register for your copy online from our website
www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.

Employers can refuse to give jobs to smokers

Employers have been told they can refuse to employ smokers and discriminate against them when advertising job vacancies.

Adverts saying “smokers need not apply” have been said to be perfectly legal by the European Commission. Sally Laughton at Andersons Solicitors in Nottingham, says it follows the instance of a firm in Ireland which said it wouldn’t hire smokers because they smelled and took too many days off work through sickness.

“The European Employment Commissioner Vladimir Spidla was asked to clarify whether an advertisement banning smokers breached European law. He ruled that it didn’t because discrimination laws only applied to matters such as race, disability, sex, age and religion.

“His opinions do not have the authority of a court ruling but it puts employers in a stronger position when it comes to refusing to employ smokers.”

The decision has been widely criticised by pro-smoking groups who say it’s an infringement of human rights because people should be free to do whatever they like in their own time.

Ms Laughton said: “It is something of a grey area and raises interesting questions as to how far employers can go in discriminating against certain groups. For example, there’s already growing evidence that many employers are reluctant to employ people who are overweight.

“A recent survey found that 93 per cent of 2000 firms questioned would rather appoint a job applicant of normal weight than someone who was obese but otherwise had the same qualifications and level of experience.

“Ten per cent of firms were even reluctant to let an obese employee meet a client. This could become a major issue in future.”

Meanwhile, Ms Laughton said there could be more bad news on the way for smokers. The European Commission is considering regulations to protect employees from the effects of passive smoking. If that happens then employers might become even more reluctant to employ smokers.

Sally Laughton is a Partner in the Employmetn Law Department at Andersons Solicitors in Nottingham. She can be contacted on info@andersonsolicitors.co.uk or tel: 0115 988 6721.

We produce FREE monthly electronic newsletters including; Private Individual, Business and Employment Law. You can register for your copy online from our website
www.andersonssolicitors.co.uk or e-mail Carly Williams at cwilliams@andersonssolicitors.co.uk.