Posts

NHS recently predicted that if present trends continue half of the population could be obese by 2030.

In the recent case of Walker v SITA Information Network Computing Limited the Employment Appeals Tribunal (EAT) held that an obese employee was disabled and therefore capable of bringing a disability discrimination claim against his employer.

In light of this decision, some employers might be alarmed to think that they should automatically class obese employees as having a disability; that fear would be largely groundless.

The Equality Act defines a disability under section 6 as a person who has a “physical or mental impairment” which has a “substantial and long term adverse effect on that person’s ability to carry out normal day to day activities.”

Mr Walker who weighed 21.5 stone brought a discrimination claim on grounds of disability. He suffered numerous health complaints including high blood pressure, depression and bowel problems. Although these problems gave rise to a myriad of symptoms (chronic fatigue, abdomen pains and pains in his limbs) which affected his ability to carry out day to day activities, the Tribunal held that he did not have a disability because medical professionals could not find a physical cause for his ailments other than obesity.

The EAT held that the first instance Tribunal had erred in law; finding that the Tribunal should not have focused on whether obesity itself should be considered a disability but whether the effects of that condition might give rise to ailments which could be deemed a disability.

In some ways obesity can be compared to alcoholism, an illness which expressly does not fall under the Equality Act’s definition of disability. While the alcoholic may not be disabled by dint of their addiction, the liver disease they may go on to develop could cause them to suffer ailments that would fall within the definition of a disabled person under the Equality Act.

The ailments consequent upon obesity might cause the overweight employee to fall into the category of disabled, but such an employee who has not yet developed disabling symptoms does not suffer a disability by reason of obesity.

As Mr Teggart, a former employee of TeleTech Ltd recently found out, an individual can legitimately be dismissed from employment, where they have been found to be Bullying and Harassing a fellow employee via social media, even when this occurs outside of the workplace.  In this case, Mr Teggart, made offensive comments about a fellow employee on his Facebook page, at home, on his private computer.  Having seen his comments, fellow employees or Facebook friends made the individual aware of the comments and someone even reported them to the employer.

Upon investigating the claims, TeleTech, took the decision to dismiss Mr Teggart for Bullying and Harassment and bringing the Company into disrepute.  Mr Teggart, believing that this action was unfair and a breach of his Human Rights, launched tribunal proceedings against the Company.  Whilst the tribunal dismissed the Company’s claim of them being brought into disrepute as a result of their former employee’s actions, they upheld the Bullying and Harassment claim, stating that his actions had caused the individual about whom the comments were made, to have to take time of work and had violated her dignity by creating a degrading working environment.

Whilst this judgement serves as a warning to employees about how they behave on Facebook and other Social Media, it also sends a clear message to employers about ensuring that they take Social Media seriously and consider its place within their Company.  As a basic, all Companies should have a policy on Social Media, ensure that policy is up to date, reflective of best practice and that the consequences of breaching the policy are clearly communicated.

However, many Companies are taking this even further by looking at how they can take the power of Social Media into their own hands, using it as a tool to increase communication and engagement.  Eastern Western Motor Group are one of a number of Companies who have created their own Facebook page to be used by both the Company and its employees to share news and information on the Company itself and the brands they represent.  Further, it allows the Company to gather the thoughts and views of their employees, almost instantaneously, ensuring they have their finger on the pulse when it comes to making decisions that affect their people.

Here at Solve. we believe that forewarned is forearmed, therefore, whether you view Social Media as friend or foe, it is important to be aware of its continued popularity, its presence, in even the smallest of workplaces and how it can be used to your advantage.

Do you need help creating a Social Media Policy? Perhaps you need advice on how to make Social Media work for you and your employees?  Whatever your needs Solve. are here to help. Free Consultation. mail@solvehr.co.uk

When Solve. heard about this case at the CIPD Conference in Glasgow we wanted to find out how people feel about Social Media in the workplace.  Look out for our survey coming later this month.

With all the recent press regarding ‘no fault dismissals’ and ‘Settlement Agreements’, it is no wonder employers are confused with regards to what they can and can’t do when it’s time to part ways with an employee.

Fundamentally, reasonableness and due process should remain at the heart of what we do, however, there comes a time when even the most patient of employers says enough is enough.  When resolving any employer/employee dispute, it is important for employers to recognise that no action is without risk.  Even the most carefully executed process will not prevent a motivated ex-employee from raising tribunal proceedings and potentially being successful.

However, we all know that the riskiest business of all are dismissals that come as a result of an ‘off the record’ conversation, often held on what an employer thinks is a ‘without prejudice’ basis.  So when is the right time to have such a conversation and on what basis?  Whilst the Government has shelved plans to allow so called, ‘no fault dismissals’, which were tabled as part of the Employment Law Review, this summer, it is expected that we will see the introduction of ‘Settlement Agreements’, an updated version of what we have all come to know as ‘Compromise Agreements’, through which an employer can gain protection from unfair dismissal claims.  These ‘Settlement Agreements’, will come at the end of a process that will begin with a proposal to end the employment relationship which can be tabled by either the employer or indeed the employee.

Using standard templates and ACAS code of practice, employers will be guided end to end through the process.  Whilst all this sounds favourable for the employer, it is important to note that this process will only offer protection in unfair dismissal claims.  Claims that include other breaches such as discrimination, evidence of automatic unfair dismissal, e.g. Whistleblowing, or where there is evidence of ‘improper behaviour’, such as coercion will not be protected. It is also important to note that any conversations held prior to obtaining a signed ‘Settlement Agreement’, can still be admissible in Employment Tribunal proceedings, unless held on a ‘without prejudice’ basis.

The rules for such a conversation are that they should be only be held in ‘a genuine attempt to settle a dispute’ and both parties should be aware of exactly what that means.  This suggests that employers should explain fully what ‘without prejudice’ means, prior to the commencement of such discussions, preferably in writing; and should remind the employee of the same at the start of any face to face or telephone discussions.

Whilst Solve. welcome the Governments plans to ease the ending of fractious employment relationships, it is clear that this particular process is not black and white.  Therefore, even if you believe that you have a straightforward case of unfair dismissal, we would suggest that you review any proposals for ending the employment relationship with a specialist HR and Employment Law practitioner.

If you have any questions or would like some more advice please contact us on mail@solvehr.co.uk