In the last edition of Fashion Focus, we highlighted some upcoming employment law developments likely to be of interest to businesses in the fashion industry. Here’s a brief update on the latest developments:
Zero hour contracts: Zero hours contracts are proving to be a hot topic out on the General Election campaign trail, with all the major political parties competing to grab the headlines with various pledges to limit the use of such contracts.
In the latest round, Labour have revisited their proposal that workers on zero hours contracts be entitled to move onto a contract with regular hours after one year to reduce the waiting time to just 12 weeks.
The Conservatives say this goes too far.
The Liberal Democrats are pledging to ban exclusivity clauses in zero-hours contracts, but this is already on the statute book (although it is waiting to be enacted).
Other regulations (also not yet in force) provide protection against detriment for zero hours workers if they work for someone else and impose financial penalties for employers seeking to avoid the ban.
Holiday pay: Fashion and retail business, often see peaks and troughs in commission payments based on seasonal sales.
Going forward businesses will have to give careful consideration to how to holiday pay is calculated. This is because the Employment Tribunal has confirmed recently that sales commission must be included in the calculation of holiday pay, but the method of calculation is still unclear.
France’s ban on super-skinny models provides food for thought
Earlier this month, French MPs surprised the global fashion industry by voting in a new law banning agencies from employing models whose Body Mass Index (BMI) is below an as-yet unspecified minimum.
The minimum BMI will be set by reference to levels proposed by health authorities. It is not yet clear what level French ministers will adopt, but the World Health Organization classifies adults who have a BMI below 18.5 as underweight and a BMI below 18 as malnourished. The new law comes with tough sanctions for non-compliance. Fines of up to €75,000 and up to six months in prison await agencies that employ models with a BMI below the specified minimum. The French law also requires agencies to indicate where a photograph has been retouched to change the model’s body shape. Failure to do so could prove expensive, with fines of up to €37,500 or 30% amount spent on the advertising.
This is the latest in a number of similar initiatives aimed at tackling eating disorders in the fashion industry. Spain and Italy already ban models with a BMI below 18.5 from taking part in fashion shows. Israel has introduced similar restrictions and this issue is also on the agenda for MPs in Norway.
There are currently no similar provisions in English law. However, employers in England and Wales should still be alive to the issues that can arise if one of their employees has an eating disorder.
Of course, one of the main difficulties facing employers is that the employee may well go to great lengths to keep their eating disorder hidden. Employers should therefore be alert to any persistent anomalies in an employee’s behaviour that could indicate an underlying problem. These might include illness at work in the form of fatigue, fainting or blackouts, difficulty performing any physical tasks, avoiding social situations involving food, mood swings, or a pattern of sickness absence.
If the eating disorder has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities, then it is likely that the employee will be treated as disabled for the purposes of anti-discrimination legislation.
If the employer knows (or should have known) about the employee’s condition, then it may be under a positive duty to make reasonable adjustments. The precise adjustments that may be required will depend on the circumstances, but might include flexible working arrangements, time off for medical appointments, a change to the employee’s duties (e.g., to avoid anything physical demanding) and the provision of a heater at the employee’s workstation.
If it appears to the employer that the employee is unfit for work, then it may be necessary to send the employee home. Employers could be in breach of the duty of care owed to employees and their health and safety obligations by allowing an employee who is clearly too ill to work to remain in the office.
If an employer notices warning signs but is unsure what they point to, an informal, sensitive and supportive meeting to discuss the employer’s concerns could prove helpful. Such a meeting should not communicate any assumption or judgement and should focus purely on the employee’s physical and mental wellbeing in connection with their ability to perform their role and any additional support they might require from the employer.
Kirsty Wright, trainee solicitor at Fox Williams LLP contributed to this article.