In a case which may have serious implications for employers, the Advocate General has given his Opinion to the ECJ that severe obesity may amount to a disability under the EU Equal Treatment Framework Directive. The case of Kaltoft v Municipality of Billund deals with an individual who was employed as a child minder in Denmark and was dismissed because he was severely overweight. He is 1.72 metres tall (around 5 feet) and weighs around 25 stone, with a BMI of 54. Under the World Health Organisation Classifications he would be classified as class 3 obesity which is described as “severe, extreme or morbid obesity”. His claim before the Danish Court was referred to the ECJ to ask the question whether obesity fell within the discriminations prohibited under EU law.

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In a month of a clutch of cases on whether or not enhanced redundancy policies are contractual, Allen and others v TRW Systems Limited is another Court of Appeal judgment in a case concerning the terms of an enhanced redundancy payment policy. The employer’s redundancy policy required it to pay an enhanced severance package comprising 3 elements. On at least 3 occasions, the employer had mistakenly included a fourth element. When it realised it did not have to do this, it stopped doing so and subsequently made redundancy payments, both voluntary and compulsory, utilising a different payment policy. The Claimants, who were made redundant in 2012, received statutory redundancy payments only and brought claims for breach of contract.

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In CSC Computer Science Limited v McAlinden and others the Court of Appeal has upheld the EAT and ET decisions that the conduct of the employer in awarding pay increases each year when salary reviews took place in accordance with RPI had become an implied term through custom and practice.

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In Peacock Stores v Peregrine and others the EAT has upheld an Employment Tribunal decision that an enhanced redundancy payment term which was nowhere in writing but which was confirmed by the former head of HR as custom and practice, and for which there was clear evidence that it had been used over a number of years, was an implied term upon which three employees who were made redundant and who were not paid in accordance with the enhanced terms were entitled to rely. The Tribunal looked at redundancies which had taken place in the company over several periods dating back 30 to 40 years and concluded that, although the practice was not completely consistent, it was sufficiently evident to become an implied term through custom and practice.

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The Government’s worst kept employment secret is now in force. All employees with at least 6 months continuous employment now have the right to request to work flexibly irrespective of whether or not they have children or dependents.

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Another case involving a law firm, that of Clyde & Co LLP and another v Bates van Winkelhof, has now reached the Supreme Court.

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In the case of Seldon v Clarkson Wright and Jakes, the age discrimination case regarding a partner of a law firm who had been retired at the firm’s mandatory retirement age of 65 and who had challenged this on the basis that it was age discriminatory, which went all the way to the Supreme Court, only to be remitted back to a different Tribunal, has now been through the different Tribunal and the EAT. Mr Seldon has lost at every stage.

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A case which has been running through the UK Courts and has now reached the ECJ, Lock v British Gas Trading Limited and others (about which the Advocate General’s Opinion was reported in the December 2013 edition of the Update), has now had judgment delivered by the ECJ. In short, it follows the Advocate General’s Opinion that, where a worker’s pay normally includes commission, and their remuneration has, as an integral part of it, a commission element, the figure used for calculating their holiday pay should be their full remuneration including commission and not reduced to the basic pay element. It found that the worker only received basic pay for taking holidays in circumstances where their normal remuneration included a significant amount of commission. Since they would therefore be significantly worse off if they took holiday, it was likely to deter them from exercising their right to annual leave. It also held that the fact that the reduction occurs after the period of annual leave is irrelevant.

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In Secretary of State for Business Innovation and Skills v Knight, the EAT has held that someone can still be an employee for the purposes of employment law even if they have not exercised their rights to be paid remuneration. In this case, the managing director and sole shareholder of a company had elected not to be paid for two years to attempt to keep the company afloat but she nonetheless remained an employee and therefore entitled to redundancy payment from the Insolvency Service under section 166 of the Employment Rights Act.

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In Allen and others v Morrisons Facilities Services Limited, the EAT has held that transferring employees cannot bring a claim against a transferee for its failure to provide the transferor with sufficient information regarding measures which it envisages taking post transfer unless the employees have a valid claim against the transferor for breach of the transferor’s obligations to inform and consult and the transferor has joined in the transferee to the proceedings as part of its defence to the claim. In this case, the Claimants had already either withdrawn or settled their claims against the transferor so they had no recourse against the transferee.

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In Clements v Lloyds Banking Plc and others, the EAT has upheld a Tribunal decision that an employee was constructively dismissed when his manager told him he wished to move him from his role and announce a new incumbent into the role. Despite being in his fifties, his manager’s age discriminatory comment “you’re not 25 anymore” was not found to be a substantial part of the repudiatory conduct in response to which the employee resigned.

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In Wijesundera v Heathrow 3PL Logistics Limited and another EAT has allowed the appeal of a Claimant against the Tribunal decision that her claims could not be brought due to the illegality of her working status. The EAT held that the allegations of harassment were not inextricably linked to her employment, which was the source of the illegality, because there was nothing to say that being an employee was what led to her being sexually harassed.

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