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.