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Obesity and Disability Discrimination

The Advocate General has given a preliminary ruling that extreme, severe or morbid obesity could fall within the definition of disability under the Equal Treatment Framework Directive.

The claimant’s employment was terminated allegedly due to his obesity (as defined by the World Health Organisation). His BMI had been 54 in 2007, representing extreme obesity.

The Advocate General considered that severe obesity could be a disability covered by the protection provided in the Directive if it hinders full and effective participation of the person concerned in professional life on an equal basis with other workers.

As the European Court of Justice (ECJ) generally follows the Advocate General’s Opinion it seems likely that the effects of severe obesity should now be considered as potentially rendering an employee ‘disabled’ for the purposes of the Equality Act 2010.

Overtime and Holiday Pay

In the UK some workers have their holiday pay calculated without taking account of overtime. For others, overtime is only taken into account if it is compulsory and guaranteed.

The ECJ has decided that the Directive which gives workers the right to 20 days’ paid holiday requires that workers should receive any intrinsic supplements and allowances.

It seems likely that the specific issue of overtime will now be referred to the ECJ to decide.

This will result in continued and uncertainty and in the meantime employers are best advised to follow a pragmatic approach.

Restrictive Covenants

In Sunrise Brokers v Rodgers the High Court held that an employee be restrained from working for a competitor during his notice period (and the period covered by his restrictive covenants) even where the employer stops paying his salary because of sickness absence.

From April 2014, due to his unauthorised absence, Sunrise ceased to pay Mr Rodgers' salary but confirmed that payments would recommence on his return to work. Mr Rodgers claimed that non-payment of salary was a bar to affirming the contract, which was not accepted.

For Haslemere based Employment Law Advice