“I wouldn’t put that on anyone. Sometimes it’s not down to lack of exercise. It could be a medical condition, like a thyroid problem. We put our drivers through rigorous and regular medical checks – this is enough.”

If Stagecoach ultimately dismissed a driver who wouldn’t or couldn’t shift the weight, would it be fair? The example is a useful one to describe the steps that employers should take when faced with employees with health problems that affect their ability to work.

Incapability is a potentially fair reason for dismissal under the Employment Rights Act 1996, and should be assessed by reference to “skill, aptitude, health or any other physical or mental quality”. Body weight is squarely placed in this category. But it isn’t as simple as “too fat, you’re fired”. In order for the employer to satisfy the statutory requirement that it has “acted reasonably in all the circumstances (taking into consideration the size and administrative resources of [its] undertaking) in treating that reason as a sufficient reason for dismissal.” For ill health, and weight in particular, any employer should be able to show that he has:

• Obtained medical evidence – weights of 20 stone plus ought to be the subject of medical treatment. Opinion should be sought from the employee’s GP as to what medical support could be given, and the timescales for improvement.
• Consulted with the employee, who should know the nature of the problem, help identify any steps the employee or employer can take to resolve the problem, and what timescales are to be kept to;
• Maintained any employee progress with guidance and warnings on non-compliance;
• when, and if, the situation seems to be moving towards dismissal follow the Acas disciplinary Code of Practice.

The letter sent to Stagecoach employees are therefore the first stage in this process – setting out to employees the problem. But it should also analyse the solutions short of dismissal, and begin a consultation process to save their jobs.

Some employees’ weight may relate to disability, and more creative employees might even try to suggest that obesity itself, even without any underlying condition, qualifies them for protection under the Disability Discrimination Act – an argument which could conceivably suceed. Nonetheless, a process described as above would, if done well, consider reasonable adjustments and alternative deployment in any event.

This simply isn’t true. Pretending you’re too ill to work when in fact you’re well enough would certainly warrant a disciplinary, but the simple fact is that you can be too ill to work but still quite well enough to get on with your leisure time and have some fun.

Two examples from opposite ends of the spectrum:

• Ill worker fired over facebook – A Nationale Suisse employee went home with a migraine, saying she needed to lay down in a darkened room. When the company noticed that she was active on facebook, they dismissed her on the basis that she must have been well enough to work. This simply wouldn’t wash here without further investigation.
• Employee with bad back takes part in surfing competition – One has more sympathy with the employer here, but an Australian appeals tribunal ruled that since he had been medically advised he could safely surf, but was still not fit to work as a baggage worker, dismissal was too harsh a penalty (thanks to Barrister Blog for this story).

If an employee has lied about his or her condition then this is grounds for disciplinary, but unfortunately that’s as far as an employer can take it.

Meanwhile in the UK, new “fit notes” to replace the sick notes issued by GPs are due to come into use in 2010.

Also, income support and incapacity benefit are merged and renamed Employment and Support Allowance. More details on those at the DWP here (including yet another extension of the term ‘customers’), and the full regulations concerning the SSP extension here.

So imagine the ire of employers when it was suggested a couple of years ago that if you were on the sick then you should still get all your holiday pay each year. Example – Bob goes off sick in December 2005. His holiday year is January to December. In November 2006 he rings up his boss and asks to take his WTR-guaranteed 4.8 weeks’ holiday for the last 4.8 weeks of the year and be paid for them. The employer is cross, as if this were correct he’d have to pay Bob holiday pay for a year when he didn’t derive any benefit from employing Bob whatsoever. A similar example would be if Bob gave his notice towards the end of 2006, and asked to be paid in lieu of his untaken holiday.

The Court of Appeal all the way back in 2005 decided this was ridiculous, and in the case of Ainsworth brokered a kind of compromise whereby if anyone didn’t work at all during a holiday year, then they weren’t a worker for the purposes of the Working Time Regs and didn’t accrue an entitlement to annual leave. This remains the domestic position for the moment, and current advice to employers is that even if Bob just comes in for one week of the year then he accrues leave for the rest of the year just as if he’d been at work.

The whole mess (now renamed Stringer) was referred to the ECJ by the House of Lords, and we have now had the opinion of the Advocate General. The AG’s report is not binding, but acts as an expert opinion that is usually followed by the whole court.

In plain English, it provides:

• You accrue leave when you’re off sick;
• But you can’t take it when you’re off sick;
• But you can get a payment in lieu of holiday when you leave.

At least, I think that’s what it means. Daniel Barnett has described the opinion as “arid – verging on incomprehensible” and certainly it makes a typical UK judgment (even a Scottish one) look like the paragon of clarity. I’m no expert on the workings of the European system, but it would appear that all of the parties’ submissions have been translated into German for the AG , and his opinion then written in German and translated into English. Honestly, I’m not being all Daily Mail about this, but surely an AG considering a UK reference ought to have the English fluency to deal with submissions without recourse to translation, and then write his opinion in English. This is simply a practical consideration: the Chinese whispers effect of translation back and forth surely comes with risks of imprecision or missing the point; it certainly makes it a nightmare to read.