There have been some interesting
developments in employment law in the last few weeks which denote a mention and
are indicative of the changing face of this oftentimes fast moving area.
The right to flexible working hours
had previously been an option that employers had to consider if it was
requested by employees who were carers or parents with children under
the age of 17. From 30 June 2014, the right to request flexible working hours
has now been extended to all employees who have been in employment for 26 weeks
or more.
Employers now have a responsibility to
consider such requests for flexible working hours in a 'reasonable' manner and
must respond to such requests within 3 months. The employer can refuse the
request but must set out their reasoning. For employers who are facing such
requests it is advisable to only refuse such requests if there is a valid
business reason for doing so.
An example of a valid business reason
would be that the job can only be done at a specific location which would
rule out a request to work certain hours of the week from home. This may apply
especially to those roles that are not office based such as in the hospitality
industry. ACAS has provided useful advice and guidance for employers and employees
to aid them through the process.
The second development that I wanted
to mention is a recent case from the Court of Justice of the European
Communities which relates to obesity. A child-minder who worked for a local
government body in Denmark brought a claim for disability discrimination
alleging that his employment was terminated due to his obesity.
This case is of interest as obesity
was not officially considered a 'disability' under EU employment law. The court
held that obesity may be considered a disability under the EU Equal Treatment
Framework Directive if it could be classed as 'severe'. The court went on to
rule that for a case of obesity to be 'severe' the relevant person's body mass
index (BMI) would need to be 40 or more. This would indicate a level of obesity
that would make professional life very difficult for the individual concerned.
The Danish child-minder in question had
a BMI of 54 which meant that he was able to successfully argue disability
discrimination against his employer. This is a potentially tricky situation for
employers as they are unlikely to know the BMI of a seemingly obese prospective
employee. One solution may be to add BMI as a category on health questionnaires
issued to new employees. Employers would then need to remain mindful of
behaviour that an employee with a BMI of over 40 may deemed to be
discriminatory.
These two changes are symptomatic of
modern living practices and lifestyles and are inclusive provisions
which are welcomed. Disability discrimination law is evolving as more types of
disability are being identified and classified. Allowing flexible working
hours, rather than being a dosser's charter as previously feared, has been
proven to increase the productivity of employees, as shown by studies in the US. Employees will welcome these new rights
and employers need to be aware of this fast moving area of law or risk being
caught out.
