How many Easter eggs did you eat?
The NHS has reported that almost 25% of adults in the UK are obese. It will hardly be surprising to hear therefore that questions have arisen as to whether obesity is a disability.
The NHS has reported that almost 25% of adults in the UK are obese. It will hardly be surprising to hear therefore that questions have arisen as to whether obesity is a disability.
In discrimination cases, employees can sue both their employer and anyone they think has helped their employer to act in a discriminatory manner. In London Borough of Hackney v Sivanandan, the Court of Appeal confirmed that where employees claim money from multiple parties, compensation must be awarded on a joint and several basis (i.e. the employee can claim the full amount from any of the parties and the unsuccessful respondents then have to sort out who ought to pay which proportion of the damages between themselves).
A tribunal will not usually refuse an application to postpone a hearing where one of the parties cannot attend due to ill health. However, in Transport for London v O’Cathail, the Court of Appeal explored the circumstances when it would be fair.
In February 2005, Miss Davies, a high school teacher, was given a final written warning for alleged gross misconduct which was to remain on her record for 24 months. Miss Davies appealed the decision but subsequently dropped it after being advised by her trade union that the Council could potentially increase the sanction from a final warning to dismissal at the rehearing. In 2006, Miss Davies was accused of further misconduct. In deciding to dismiss her, the Council took into account the final written warning on her record.
In Onyango v Berkeley, Mr Onyango, a solicitor, claimed that as a result of accusing his former employer of acting illegally, he was reported to the Solicitors Regulation Authority for forgery and subject to an investigation by the SRA.
In Buzolli v Food Partners, the Employment Appeal Tribunal found that an employer’s decision to dismiss was fair even though the dismissal procedure was not fully compliant with the ACAS Code.
In Handshake Ltd v Summers, the Employment Appeal Tribunal found that a breakdown in trust and confidence between an employer and employee, did not entitle the employer to rely on “some other substantial reason” to dismiss the employee.
In X v Citizens Advice Bureau, X signed a volunteer agreement to work four to five hours a week for a Citizens Advice Bureau. The volunteer agreement specifically stated that it was “not an employment contract or legally binding”. The CAB subsequently asked the volunteer to stop working for the organisation. She claimed that this was disability discrimination.
To the great joy of the Daily Mail, in the much publicised case of Eweida and Ors v UK, the European Court of Human Rights ruled that Nadia Eweida, a practising Christian and British Airways check in worker should not have been prevented by BA from wearing a visible plain silver cross necklace. Whilst the European Court agreed that BA’s aim to promote their corporate image was reasonable, there was no evidence that employees wearing religious items had a detrimental impact on that image. The European Court decided that there had been a breach of Ms Eweida’s right to manifest her religion. The fact that BA subsequently amended their uniform policy demonstrated that the earlier prohibition was not very important.
In Optimum Group Services Plc v Muir, Optimum lost a key contract. They thought Mr Muir’s employment should transfer to the new providers, Beaumont, under TUPE. The new providers denied this and said that Mr Muir was redundant and should claim payments from Optimum. Mr Muir ended up with no job and no redundancy payment so sued both Optimum and Beaumont. Mr Muir reached a settlement with Beaumont before the hearing where they agreed to pay him £20,000. He continued his claim against Optimum and won. The Tribunal found that Mr Muir had been unfairly dismissed by Optimum. In calculating the compensatory award for unfair dismissal, it decided not to deduct the £20,000 settlement payment from Beaumont because to do so would give Optimum, who had behaved badly, a ‘windfall benefit’. The Employment Appeal Tribunal held that the first tribunal had got it wrong. A Tribunal, when calculating compensation for unfair dismissal, should only consider what actual financial loss was suffered by a claimant as a consequence of dismissal. The Tribunal cannot enable a claimant to profit financially irrespective of the circumstances. The Tribunal also erred when it sought to penalise Optimum for its behaviour towards Mr Muir.
Probably the most radical reform proposed by the Government is the new ‘employee owner’ status, whereby employees will forfeit major employment rights (like unfair dismissal) in exchange for employees being given shares in their employer worth £2,000 or more. These shares will be sold back to the employer for a reasonable price and up to £50,000 worth of shares will be exempt from Capital Gains Tax (CGT) at the point of sale. This is due to come into force in April 2013.
In Wincanton v Stone, Mr Stone was employed as a driver for Wincanton. In 2009, Mr Stone received a first written warning for being insubordinate. In 2010, Mr Stone breached Wincanton’s health and safety rules when he pulled out of a loading bay when the light was red. This was not an act of insubordination but carelessness. Wincanton dismissed Mr Stone on the basis that the earlier warning “tipped the balance” in favour of dismissal, even though the two warnings were for very different types of conduct.
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