The Practical Lawyer


Obesity – discrimination?

There is nothing to stop an employer from discriminating on obesity grounds. The danger, however, is that the discrimination may be said to also be on unlawful grounds, such as disability or sex discrimination, or for aesthetic – rather than health – reasons.

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Gangmasters – the rules

It is an offence for businesses in food processing and farming to use labour supplied by an unlicensed gangmaster (unless the user took all reasonable steps to check the gangmaster had a licence, and there were no reasonable grounds to suspect there was no licence).

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Dismissal Register – risks

Proposals for a National Staff Dismissal Register have been mooted within the retail sector to help employers with their initial screening of potential recruits. In effect, large retailers would pool information about staff who have left because of alleged dishonesty.

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Warnings – expired

To what extent can an employer rely upon a lapsed (expired) warning?

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Discrimination – by ‘association’

The ECJ has held that it is possible for there to be disability discrimination against an employee even if the employee is not disabled. This can happen if the disability relates to someone who is ‘associated’ with the employee (eg a child).

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Grievance – ‘informal’

What should an employer do if an employee submits a written complaint but suggests that the matter should be resolved ‘informally’?

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TUPE – service provision

A change of service providers can result in a TUPE situation. However, if workers are taken over by two or more companies, then TUPE liability should not be apportioned between those various companies. Instead, it passes to the one company that takes on the activities of the particular employees (as with the rules on a transfer of undertakings).

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Statutory Procedures – delay

The Statutory Dismissal and Disciplinary Procedures say that ‘each step and action under the procedure must be taken without unreasonable delay’.

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Redundancy – age discrimination

It is important to ensure that redundancy selection criteria are not tainted by age discrimination. Obviously, selecting someone for redundancy because they are the oldest (or youngest) employee would be direct age discrimination.

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Garden leave – implied right?

It is advisable for employment contracts, especially those of senior employees, to contain an express power to place the employee on garden leave at any time during the employment relationship, or when notice of termination has been given. This will allow the employer to isolate the employee for a defined period following a breakdown in the employment relationship (eg if the employee wants to leave to work for a competitor).

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