One of the Island's hot potatoes, the Discrimination
(Jersey) Law is set to come into force in under a month.
The discrimination law continues to stir debate, and the first
test case of racial discrimination in Jersey will no doubt be
scrutinised to the nth degree. But what about other 'protected
characteristics' that the law envisages catering for? Article 5
enables the States to add further 'protected
characteristics' and it is surely only a matter of time before
sex, age and disability will be on the agenda.
In respect of the latter, there has been an interesting
development in the European Union. It must be pointed out that
Jersey is not a member state nor an associate member state of the
EU. Instead, it enjoys a special relationship with the EU, which
allows it to participate in the European Economic Community for the
purposes of trade. However, decisions of the EU directly affect the
United Kingdom and, when it comes to employment law, UK cases are
typically of interest to the Jersey Employment Tribunal.
The case concerns a Danish childminder, who tipped the scales at
over 25 stone and had a BMI of 54 (the average BMI being between
18-25). The childminder was dismissed by his local city council in
2010 after reportedly being unable to bend down to tie up his
shoelaces. Proceedings for unfair dismissal were commenced and
As a preliminary point, the European Court of Justice (ECJ) was
asked to determine whether, as a matter of EU law, obesity could be
considered a disability. Niilo Jaaskinen, the advocate general of
the ECJ concluded that severe obesity, being a body mass index
(BMI) of more than 40, could be considered a disability.
Furthermore, Mr Jaaskinen went on to say that a 'self
inflicted' condition such as severe obesity was worth as much
protection as other disabilities and that the "origin of
the disability is irrelevant". While this may not be
immediately palatable to some, if this were not the case, a person
who became physically disabled from participating in a dangerous
sport would be excluded, for example. The notion for disability
remains objective for this reason.
The ECJ will now have to consider the case in greater detail,
and if it agrees with Mr Jaaskinen, the Danish court will be
required to decide whether the childminder's obesity meets its
definition of a disability.
The UK courts have not yet recognised obesity as a disability,
but the ECJ's decision in this case could change that.
Employers are obliged to make reasonable arrangements to
accommodate any special requirements arising from a person's
disability. If severe obesity is a disability, this could mean
providing parking spaces closer to the office, altering workspaces
and allocating duties that are less physically demanding. Given
that the World Health Organisation went on record in late 2013
stating that obesity rates in the UK are "just about the
worst in Europe", this is a significant issue.
Jersey can spectate with interest for the time being, but when
disability becomes a 'protected characteristic' in the
Island, the ECJ's determination of this matter and consequent
impact on the UK may well need to be borne in mind by all employers
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On 1 January 2017 the Financial Services Rule Book 2016 comes into operation. With this will be the requirement on all Isle of Man licence holders to establish, implement and maintain an effective whistleblowing policy.
The Ministry of Human Resources has recently issued a string of new ministerial resolutions and decrees designed to address gaps in the employment regulatory framework and reinforce existing legislation...
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