Labour is Not a Commodity

Facebook 'unfriending' can constitute workplace bullying - Australian tribunal finds

2015-09-25T22:32:00.000+02:00

A woman in Australia who unfriended a colleague on Facebook after a dispute at work was found by a tribunal to have committed workplace bullying.

The Fair Work Commission, a workplace tribunal, said the decision by Lisa Bird, a real estate agent sales administrator, to unfriend her colleague Rachel Roberts showed a "lack of emotional maturity" and was "indicative of unreasonable behavior."

The incident occurred after Ms Roberts, a property agent, complained to the agency principal that her properties were not being adequately displayed in the store window.

Mrs Bird, the wife of the principal, then accused Ms Roberts of being a "naughty little school girl running to the teacher."

Ms Roberts left the office crying and then checked to see if Mrs Bird had commented on the incident on Facebook, only to discover that Mrs Bird had instead unfriended her.

Ms Roberts said she had been bullied and was left with depression and anxiety – a claim the tribunal accepted.

“This action by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour,” the tribunal ruled.

“The ‘schoolgirl’ comment… is evidence of an inappropriate dealing with Ms Roberts which was provocative and disobliging. I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts on 29 January 2015, when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her.”

Ms Roberts listed other claims of unfair treatment by Mrs Bird, who was accused of failing to say hello in the morning and of delivering photocopies and print-outs to all staff but Ms Roberts. The commission has issued an order to stop the bullying.

Legal experts said the case did not mean that unfriending a colleague on Facebook would automatically constitute bullying.

"The Fair Work Commission didn't find that unfriending someone on Facebook constitutes workplace bullying," Josh Bornstein, a lawyer at the firm Maurice Blackburn, told ABC News.

"What the Fair Work Commission did find is that a pattern of unreasonable behavior, hostile behavior, belittling behavior over about a two-year period, which featured a range of different behaviors including berating, excluding and so on, constituted a workplace bullying." (Telegraph)

Goldman Sachs restricts intern workday to 17 hours - in the light of the EU labour law

2015-06-20T19:29:00.000+02:00

As many of you may remember, in 2013 a 21-year-old Bank of America Merrill Lynch intern was found dead in a shower at his London flat after working for 72 hours in a row, died of an epileptic seizure.

Goldman Sachs is quick to answer back.

Go home before midnight, and don’t come back before 7am. The new rules, introduced for this summer’s crop of investment banking interns, have been introduced “to improve the overall work experience of our interns”, a Goldman Sachs spokesman said. All of its summer interns across the world were informed of the new working hours rule on their first day in the office earlier this month. (Guardian)

The EU's Working Time Directive (2003/88/EC) stipulates minimum standards applicable throughout the EU. The Directive requires the member states to guarantee certain working conditions to the employees. One of them is the rule of daily rest. Article 3 reads that 'Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.' It seems that Goldman Sachs would fail this test - at least concerning its branches within the EU.

One can argue that Goldman Sachs' new rule concerns only summer interns who are not employees of the company. But in the context of the European labour law I beg to differ. The notion of 'worker' in the EU legislation, and notably in the Working Time Directive, has a large scope of application. The concept of 'worker' must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and obligations of the persons concerned (Blanpain).

The Karl Robert Kranemann case (Case C-109/04, Karl Robert Kranemann v Land Nordrhein-Westfalen) has ensured us that a trainee lawyer is covered by the protection as a 'worker' within the scope of the EU law, and such, is concerned by the stipulations of the Working Time Directive. According to the case law, the term 'worker' has a specific Community meaning and it is not to define narrowly. The essential feature of an employment relationship is, the Court said, is the fact that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.

At least, Goldman Sachs pays for its interns. However, it puts them within the scope of the Working Time Directive in the EU.

Child Labour in the Developed Countries V. - Conclusions and Suggestions

2015-04-06T22:05:00.000+02:00

We conclude that contrary to the popular myth child labour exists in the developed countries aswell. To achieve a better world free of child labour by 2016 further steps are necessary. This article intends to take a few suggestions for this purpose.

Apply stricter criminal sanctions against the users and facilitators of any form of child labour with special regard to the child pornography, prostitution and trafficking. Since our children interests are – at least – as important as the right for data protection of sexual crime committers a much more effective protection is needed. It would worth to find possibilities how to deny these criminal’s access to the Internet which is a hub for these type of crimes.

Penalize sex tourists who committ crime against children in third countries. Implement effective co-operation with travel agencies, hotels and other service providers to reduce the opportunity to participate in sex tourism. The most developed countries shall support their poorer counterparts to eliminate child labour not only with money but with self limitations.

Exclude companies from public procurement which have ever been affectuated by child labour, notwhistanding was it the mother company or some of its subsidiary. Extend this prohibition for private persons and his interests who were in charge of such a company.

Ensure early education and care for children. Maintain quality education and/or vocational training for everyone. It is well documented that quality education and child labour negatively correlate. New surveys show that inequalities in children’s development commence early therefore early education and care is equally important that school education.

Promote women’s work. Families in which there is only one breadwinner are more fragile therefore we can find a working child here two times more frequently than in families with two working parents. Additionally, in lone mother families the work is a must for women.

These are only but a few examples how to ameliorate the current situation.

Historically, the first provisions against child labour were conceived in 1788 in Britain banning climbing boys and chimney sweepers under the age of 18. More than two centuries after the first legislation there are many things to do have been left.

A previous version of the whole study can be found here

Child Labour in the Developed Countries IV. - Current Situation

2015-03-31T14:33:00.002+02:00

In this paper we consider developed countries the member states of the European Union and the OECD. It makes totally 34 countries (the EU-28 and Australia, Canada, Korea, New-Zeeland, Turkey and the USA). Obviously, not all of the EU members are joined to the OECD as well, whereas some OECD country exists without EU membership.

The mainstream public opinion would say there is no point to deal with child labour concerning these countries since this issue has marginal significance and obviously it is worth much better to cater for the developing world. We do think it differently. Even if developed countries’ figures are seemed to be irrelevant in comparison with those from converging and emerging states, some good reasons are to be mentioned on the other hand.

First of all, the well developed and industralized states must act a role model in the eyes of the rest of the world therefore any alteration from the benchmark can hardly be acceptable. A further reason, that the IPEC itself is highly optimistic about the total elimination and where else would be more self-evident to achieve this ambition than in the economically best situated countries. And finally, the seriousness of the topic may give an explanation as well since even one child within deplorable conditions shall be too much, consequently, we are supposed to be strict with the developed world.

The EU and the USA has introduced provisions on a new Generalised System of Preferences, banning – among others – the import of products from industries using child labour. The question is what kind of actions are to be taken to avoid child labour in the internal markets.

In 2004 the total number of children were 1566 million in which 218 million was working, so the 14 % of total children. This number shows a slight decrease compare to 2000’s data since the percentage was 16 % - 245 million working children from totally 1531 million. In accordance with the geographical distribution, the figures represent a strongly unequal share between continents. Asia takes responsability for almost the two-third of child workers while the second biggest chunk is belonged from Africa. The reasons of the overrepresentation of the two said continents are quite obvious, the relative underdevelopment and the vast proportion of the world’s children. One would say that the developed countries’ role is deemed to be marginal but the 1 % share means more than 2 million children at work.

Understanding the above number it is striking how developed countries are negligent about the problem. In New Zeeland for example there are not any relevant statistics about but child labour is certainly exists since there is annually one child victim in work related accidents in this roughly 3.6 million’s country.

Recent surveys show there is a strong correlation between child labour and child poverty and lack of education. In the industrialized countries 3,7 % of school age children are out of school. It means 2.6 million children in other words approximately equal with the number of working children in these countries.Parental unemployment constitutes another aspect of disadvantages which could lead to child labour. Children who are growing up in a family in which one or both parents are unemployed very often are supposed to contribute family income. A derivated cross-effect that men unemployment is negatively correlate with marital stability which can also impact children’s well-being.And not to underestimate to role of social exlusion. Ethnic minorities like gypsies in Europe, aborigines in Australia, maories in New Zeeland, inuits in Canada, natives, african-americans and latinos in the United States are specially vulnerable by child labour as they are out of the scope. The situation is similar with migrants, among which child laborers are well overrepresented.

The alteration amongst the developed countries concerning child labour is significant. Taken into account the ratio between the total number of children and working children, Romania and Bulgaria are legging behind the others. In these countries ethnic minorities are particularly involved in child labour, especially in remote, agricultural territories. Child trafficking constitutes a major problem also and Romania „exported”many child street vendors and beggars through Europe. In absolute numbers the USA considers the worst example. In the USA 16 % of children live below the poverty line and only in agriculture we can find more than 200.000 child workers. As we expected, among the „old” EU members the highest rates are in Spain, Portugal and (Southern-) Italy. In Spain and Portugal child poverty and consequently child labour have remained on the same level despite of the economic boom of the ’90’s and 2000’s. It proves that concerning child labour is not only money matters but other, mainly cultural factors. That is why this tackle is harder than simply compress the inequalality gap.

Furthermore, it constitutes a huge problem that companies and citizens of the developed countries „export” child labour to the emerging states. Due to the Generalised System of Preferences, the situation has become better in business life but amongst private persons sex tourism to third countries is still a significant troublesome phenomenon.

Concerning the partition among the sectors, similarly to the developing world the agriculture represents the major ground for child labour. Child workers plant and harvest crops, spray pesticides and tend livestock very often from sun up to sun down. Surprisingly enough, agriculture is deemed to be one of the three most dangerous sectors along with construction and mining. The major defavorable circumstances which facilitate child labour are the remoteness of the rural territories, the lack of the schools and the traditionally underregulated agricultural sector.

Subject to the share of various sectors in which child labour exists, apart from agriculture which role is considered as the strongest one, we can see serious differences between developed countries and the rest of the world. While in the emerging and converging countries mines, ceramics and glass factory work, matches and firework industry, deep sea fishing and slavery are just a few examples of the several grounds of child labour, in the developed countries domestic works, street vendors and beggars and unfortunately child prostitution and pornography and the related trafficking activities are the main responsible factors for child labour.

From the differences it is obvious that whereas in the developing countries child labour on the one hand is an integral part of the (informal) economy, though on the other hand is changeable with other workforce. By contrast in the developed world child labour is mainly related to illegal activities therefore the total annulation will be extremely difficult and full of challenges.

To be continued.

A previous version of the whole study can be found here

Child Labour in the Developed Countries III. - The Practical Framework

2015-03-09T20:25:00.000+01:00

The International Programme on the Elimination of Child Labour (IPEC) was launched in 1992. It is considered the biggest technical cooperation of the ILO .

The Program operates in 88 countries on 190 field projects with the financial support of member states and private sponsors (companies and natural persons). The original main goal of the IPEC is more than ambitious: eliminate the worst forms of child labour by 2016 at the latest. The IPEC’s approach is revolutionnary, it breakes the traditional role of an international organisation to verify and apply sanctions against member states which are not able to comply with the conventions but try to help them to implement policies in the reality. And quick and efficient implementation is crucial while children at work are much more exposed to biological and chemical hazards than their not working counterparts and the risk of verbal and sexual abuse is more common among them as well.

To pursue its mandate, IPEC relies on tripartite cooperation. Apart from trade unions and employer’s organizations, the Programme co-works and communicates with other international and national institutions, NGO’s, universities and the media. Among the countries targeted by IPEC we hardly could find other developed countries than Bulgaria and Romania. It is seems that the main asset in the fight against child labour in developed countries is not the IPEC but national policies.

To be continued.

A previous version of the whole study can be found here

Child Labour in the Developed Countries II. - The Legal Framework

2015-02-19T23:43:00.003+01:00

The fight against child labour is not solely an ILO issue but much more widespread and structured. First of all, we have to mention the UN’s Convention on the Rights of the Child from 1989. This Convention describe the legal notion of „child”, order to ban any work which is likely to be hazardous, interfere with the education, or to be harmful to the health or physical, mental, spiritual, moral and social development of children. The document requires the member states to take legislatives about the minimum age, working hours and other working conditions, and to apply sanctions against the facilitators of child labour.

The International Covenant on Civil and Political Rights (1976) has established the protection of minors and prohibits slavery and compulsory labour. Other international conventions prohibit

furthermore human trafficking, forced labour and the exploitation of the prostituion – factors which are related to child labour. Apart from the ILO many other UN agencies and founds – among others the UNICEF, UNESCO and the FAO – and numerous NGO’s are involved in the prohibition of child labour as one of the most important elements of children welfare.

According to Jean-Michel Servais (Working conditions and Globalization’ in Blanpain R. /ed/, International Labour Law and Globalisation /Textbook, Tilburg, 2010/), we can classify the ILO’s labour standards into three categories. The first one concerns the fundamental rights, the second one covers standards of a programmatic nature and the third one relates to the technical provisions. Without any doubt, the legal norms against child labour have fallen into the first group.

Pertaining to the ILO legislation, two declarations and two recommendations deal with child labour.

The so-called Minimum Age Convention (Convention No. 138) was adopted in 1973. This Convention unifies and simplifies the previous conventions which was made sector wise – as separate minimum age conventions existed for agricultural, industrial and fishing work, just to mention but a few. The aggregated new Convention applies a double norms: a stricter one for developed countries and another one for member states whose „economy and educational facilities are insufficiently developed” (Art. 5 of the Convention). According to the general rule, minimum age may not be less than the age of completion of compulsory schooling and in any case not less than 15 years. By contrast, developing countries under the above mentioned definition may stipulate 14 years as a minimum age. For this alteration the Convention only requires a consultation with employer’s and worker’s organisations – where such exist.

This article intends to focus on developed countries but we cannot be reluctant about this provision. Firstly, the criteria of developing nations is so broad and dim that almost every country could define itself as a developing one. Secondly, the Convention requires only a consultation and not a co-decision with concerned organisations. Thirdly, in absence of these organisations – which would be sharply controversial with ILO’s tripartism – such weak consultation is not mandatory either. In these circumstances practically every country can decrease the minimum age to 14 years.

Furthermore, the Minimum Age Convention stipulates that for jobs which are likely to jeopardise the health, safety or moral of young person shall not be less than 18 years.

The Minimum Age Recommendation (Recommendation No.146) – among others - refers to the most vulnerable groups: migrant children and children without family, providing that a special attention is required to take towards them. Education and vocational training as solutions to prevent child labour are also mentioned. The Recommendation urges the member states to raise the minimum age to 16 years – or 15 years in developing countries.

The Convention on the Worst Forms of Child Labour (C No. 182) stems from another mindset. Whereas the Minimum Age Convention accepts the variety of the countries and supports solutions on long term, the Worst Forms Convention applies zero tolerance and aims to prohibit immediately the worst forms indeed.

This Convention declares all forms of slavery, trafficking, forced and compulsory labour, prostitution, pornographic performance, any illicit activities, and all kind of works which are likely to harm the health, safety or morals of children as activities to prohibit and eliminate immediately and effectively concerning all children under the age of 18.

The ratifying member states are obliged to monitor the implementation of the Convention’s provisions. Action programs and penal sanctions are to be taken since active policy is required on behalf of the members. The ratifying countries are supposed to ensure the access to a free elementary education in order to avoid child labour.

Likewise to the minimum age provisions, the Worst Forms Convention was followed by a recommendation as well. Similarly again, the Recommendation introduce the most vulnerable groups: younger children and the girl child. This ILO standard contains guidelines about which type of abusive activities are deemed to be criminal offences.

The acceptance of Worst Forms Convention is one of the biggest success story of the ILO. Within a decade 90 % of its member states have ratified the Convention while Minimum Age Convention counts 151 ratifications or 80 % of members. It is considered as the quickest and almost unanimous ratification int he long history of the ILO.

As for developed countries, in the European Union child labour is explicitly banned in the Charter of Fundamental Rights. Subject to the Art. 32, the employment of children is prohibited and the minimum age of admission to employment may not be lower than the minimum school leaving year. The Council Directive 94/33/EC classifies young workers in three categories: young people under the age of 18, children under the age of 15 or still in full-time compulsory education and adolescent between the age of 15 and 18 who are no longer in full-time compulsory education. Apart from the ban of the work of children the Directive applies regulations about the working time of young labourers and a number of general obligations for the employers from the point of view of safe and healthy.

By contrast, due to its inter-governmental and not supranational nature, the OECD does not apply legaly binding instruments for its member states. However, self-evidently OECD members do accept the other international regulations and maybe duplicate them is not necessary within this organization. In addition, we have to notice that OECD differs from other international organizations from the point of view of control and feedback mechanism. Due to the homogenity of the member states, instead of institutionalised regulatory mechanisms, peer review and peer pressure are to designate to supervise member’s practices. It can be another reason for the absence of own legislation in this field. On the other hand, OECD Guidelines for Multinational Enterprises worths a notice since the Guidelines requires companies to contribute to the effective abolition of child labour (OECD Guidelines 2011, V. 1. c).

To be continued.

A previous version of the whole study can be found here

Child Labour in the Developed Countries I. - Introduction

2015-02-15T22:34:00.001+01:00

Without any doubt, the International Programme on the Elimination of Child Labour (IPEC) - which was created in 1992 - is considered as one of the most ambitious program of the International Labour Organization. The program’s main goal has been to eliminate the worst forms of child labour at all until 2016.

The roadmap adopted in The Hague Global Child Labour Conference (2010) somehow refined the aim into 'substantially increasing global efforts to eliminate the worst forms of child labour by 2016. Then, the III. Global Conference on Child Labour (2013) faced the realities, saying: 'The global number of child labourers has dropped from 246 million to 168 million over the last decade. But even the latest improved rate of decline is not enough to achieve the goal of eliminating the worst forms of child labour by 2016.' One year before the original 'deadline' it is not without reason to overview the current situation - this time from a special angle: what is about child labour in the so-called developed countries.

According to the public opinion child labour is deemed to be one of the Third World’s issues far away from the everyday life of developed countries. By contrast, this article takes an attempt to show how the elimination of child labour is going on in the developed world. First of all, we introduce the relevant international legal sources of the abolition of child labour. In addition, the article presents the IPEC agenda and its ambitions. Subsequently, we intend to go on to describe the current situation concerning child labour in the developed countries. This article considers the 28 member states of the European Union and the members of OECD as developed countries. Finally, we conclude the article with suggestions: how it would be possible to reduce and eliminate child labour in the developed world.

To be continued.

A previous version of the whole study can be found here

EU court judgment on obesity (Kaltoft case, C-354/13)

2015-02-05T19:05:00.001+01:00

As we noticed earlier, in accordance with this recent ECJ decision obesity can be deemed to be a disability.

ECJ C-354/13

I – Introduction

1. Obesity is a growing problem in modern society. (2) In this order for reference the Court is asked to determine, and for the first time, which provisions of EU law, if any, apply to discrimination based on obesity.

2. Mr Kaltoft, the plaintiff in the main proceedings, claims that his employment with the Municipality of Billund as a childminder was terminated due to his obesity, and that this amounted to discrimination on grounds of disability. Mr Kaltoft further states that at no time during his period of employment with the Municipality of Billund has he weighed under 160 kg. He is 1.72 metres tall. The parties agree that throughout his 15 years of employment as a childminder with the Municipality of Billund, Mr Kaltoft has been obese as defined by the WHO. (3)

3. Mr Kaltoft’s case is framed on two principal arguments. First, it is contended that obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market, and that this rule has been breached by the Municipality of Billund through Mr Kaltoft’s dismissal. Secondly, it is proposed that obesity is a form of ‘disability’, so that discrimination on the basis of obesity is precluded by Articles 1 and 2 of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. (4)

II – Legal framework, facts, the questions referred and the procedure before the Court

A – Applicable provisions

1. EU law

4. Pursuant to Article 1 of Directive 2000/78, the purpose of the Directive is to ‘lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’, while Article 2 confirms that both direct and indirect discrimination are encapsulated in Directive 2000/78, with only the latter being subject to the proviso of objective justification.

5. The scope of Directive 2000/78 is set out in Article 3. Article 3(1)(c) provides that within the limits of the areas of competence conferred on the Community, Directive 2000/78 shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to employment and working conditions, including dismissals and pay.

2. Danish law

6. The Lov om forbud mod forskelsbehandling på arbejdsmarkedet mv. (Forskelsbehandlingsloven) lovbekendtgørelse nr. 1349 af 16. december 2008 (Law on the prohibition of discrimination in the labour market, etc, Consolidated Law No 1349 of 16 December 2008), Paragraphs 1, 2(1), 2a and 7a, are mentioned in the order for reference as the pertinent provisions of Danish law. Directive 2000/78 has been implemented through an amendment to the Forskelsbehandlingsloven.

7. Pursuant to the Forskelsbehandlingsloven, discrimination is understood to mean any direct or indirect discrimination on the grounds of, inter alia, disability. Such discrimination by employers is precluded in, inter alia, dismissal.

B – Facts and the questions referred

8. The plaintiff, Mr Karsten Kaltoft, who is represented by his union the FOA Fag og Arbejde (‘FOA’) has been employed since 1996 as a childminder in the Municipality of Billund, which is part of the public administration of Denmark. Childminders are hired to take care of other peoples’ children in their own homes. Due to Mr Kaltoft’s obesity, as part of its health policy the Municipality of Billund provided financial assistance for the period from January 2008 to January 2009 in order for him to attend fitness and physical training sessions.

9. Mr Kaltoft was dismissed by letter of 22 November 2010. The dismissal took place following an official hearing process applicable to dismissal of public-sector employees. At a meeting held during that process Mr Kaltoft’s obesity was discussed. The parties disagree, however, as to how Mr Kaltoft’s obesity came to be discussed at that meeting, just as they disagree as to whether it was stated that his obesity formed part of the basis for the dismissal decision. The reason given in the written notice of dismissal was that the dismissal had been decided on ‘following a specific assessment on the basis of a decline in the number of children’. Obesity was not mentioned in the notice of dismissal, and nor were any reasons given as to why precisely Mr Kaltoft, of the several childminders employed by the Municipality of Billund, was selected for dismissal.

10. Mr Kaltoft submits that he was unlawfully discriminated against because of his obesity, and that the Municipality of Billund must pay him damages by way of compensation for the discrimination in which it engaged. He instituted proceedings before the Retten i Kolding, in pursuit of this claim.

11. On 25 June 2013 the Retten i Kolding decided to refer the following questions for a preliminary ruling.

‘(1) Is it contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights, generally or particularly for a public-sector employer to discriminate on grounds of obesity in the labour market?

(2) If there is an EU prohibition of discrimination on grounds of obesity, is it directly applicable as between a Danish citizen and his employer, a public authority?

(3) Should the Court find that there is a prohibition under EU law of discrimination on grounds of obesity in the labour market generally or in particular for public-sector employers, is the assessment as to whether action has been taken contrary to a potential prohibition of discrimination on grounds of obesity in that case to be conducted with a shared burden of proof, with the result that the actual implementation of the prohibition in cases where proof of such discrimination has been made out requires that the burden of proof be placed on the respondent/defendant employer (see recital 18 in the preamble to Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex)?

(4) Can obesity be deemed to be a disability covered by the protection provided for in Council Directive 2000/78/EC … and, if so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the prohibition of discrimination [on] grounds of disability as laid down in that directive?’

12. The FOA, acting on behalf of Mr Kaltoft, the Municipality of Billund, represented by Kommunernes Landsforening (association of Danish municipalities), the Kingdom of Denmark, and the Commission deposited written observations. All participated through their representatives at the hearing that took place on 12 June 2014.

III – Analysis

A – Preliminary observations

13. At the outset it is important to be mindful of the scope of the preliminary questions. The first preliminary question, and the two following questions, relate to the problem of whether obesity can be considered as a self-standing ground of discrimination which, according to Mr Kaltoft, is unlawful due to a general principle of EU law prohibiting all forms of discrimination in the labour market.

14. The fourth preliminary question, on the other hand, asks in essence whether obesity is always or in some cases included in the scope of the notion of ‘disability’ in the sense of Directive 2000/78.

15. A negative answer to the first preliminary question will render unnecessary an answer to questions 2 and 3 in the form the national court has formulated them, given that they too relate to the, alleged, general prohibition in EU law covering all forms of discrimination in the labour market. In the following I shall come to the conclusion that there is no general principle of EU law prohibiting discrimination in the labour market, and that would encapsulate discrimination on grounds of obesity as a self-standing ground of unlawful discrimination. However, in my opinion obesity of a certain severity may amount to a disability under Directive 2000/78.

B – Is there a general prohibition in EU law on all forms of discrimination that includes obesity? (question 1)

16. There are four provisions of the Treaties that address the issue of disability. They are Article 10 TFEU, according to which ‘[i]n defining and implementing its policies and activities, the Union shall aim to combat discrimination based on … disability …’, Article 19 TFEU, which provides the legal basis for the European Union to take appropriate action to combat discrimination based on disability, Article 21 of the Charter of Fundamental Rights of the European Union (‘EU Charter’) which prohibits ‘[a]ny discrimination based on any ground such as … disability’, and Article 26 of the EU Charter, which states that the ‘Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’.

17. In contrast, obesity is not mentioned as a prohibited ground of discrimination in any of the provisions detailed above, or in any other measure of EU law. However, Article 21 of the Charter is open-ended in that it prohibits ‘discrimination based on any ground such as …’. Therefore, on the basis of the wording of this provision, taken on its own, it might be argued that there is a general principle of non-discrimination in EU law covering grounds not explicitly mentioned in Article 21 of the Charter. Examples of such prohibited grounds of discrimination might lie in physiological conditions such as appearance or size, psychological characteristics such as temperament or character, or social factors such as class or status.

18. If there is a general prohibition on discrimination in the labour market that is provided by EU law, it would have to be grounded on (i) the EU Charter provision on non-discrimination (Article 21), (5) or (ii) general EU law principles resulting from constitutional traditions common to the Member States or guaranteed in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In support of the latter, Mr Kaltoft relies on Article 14 of the ECHR, Protocol 12 to the ECHR, and open-ended non-discrimination provisions in the Estonian, Netherlands, Polish, Finnish and Swedish constitutions.

19. However, it is important to bear in mind that the Court has affirmed that Article 6(1) TEU precludes recourse to the Charter to extend ‘in any way the competences of the European Union as defined in the Treaties’, (6) while Article 51(2) of the Charter has been interpreted in a similar way. (7) These provisions set out an outer-boundary of EU fundamental rights law that is pertinent to the case to hand.

20. Pursuant to Article 51(1) of the EU Charter, it only binds the Member States when they are ‘implementing’ EU law. Under the case-law of the Court to date, the fact that discrimination occurs in a substantive field such as the labour market is an insufficient foundation for concluding that a Member State, and in this case Denmark, is ‘implementing’ EU law. (8) Equally, where the objective of the main proceedings does not concern the interpretation or application of a rule of EU law other than those set out in the Charter, the link will be insufficient. (9)

21. Rather, before a legal situation is covered by EU fundamental rights law, as reflected in the EU Charter, there must be a certain degree of connection with EU law above and beyond the fact that matters covered are closely related, or one of those matters has an indirect impact on the other. (10)

22. The requisite link will be established when there is a specific and identified provision of Member State law, and in this case the law of Denmark, falling within the (substantive) scope of an equally specific and identified provision of EU law, whether it be found in an EU legislative act, or in the Treaties themselves. (11) A dual identification exercise of this kind does not appear in the case file. Rather, reliance is placed on the existence of a general principle of EU law precluding all discrimination in the labour market.

23. Further, Articles 10 and 19 TFEU are, in my opinion, insufficient for establishing an incidence of Member State implementation of EU law in the sense of Article 51 of the Charter. Article 10 TFEU contains, as Advocate General Wahl observed in Z, (12) a general clause which articulates a particular policy aim to which the European Union is committed. I add that Article 19 TFEU only establishes a legal basis for EU anti-discrimination measures within its competences and cannot be applied to grounds of discrimination not spelled out therein. (13) The Court has recently reiterated that national legislation capable of indirectly affecting the operation of a common organisation of the agricultural markets cannot in itself constitute a sufficient connection between that legislation and EU law so as to trigger application of Article 51(1) of the Charter. (14) Similarly, the fact that a decision taken by a public authority of a Member State, and here a decision dismissing Mr Kaltoft, might be capable of affecting EU anti-discrimination policy, can no more supply the connection required by Article 51(1) of the Charter.

24. According to the explanations to the Charter, Article 21(1) thereof ‘does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article’. (15) Moreover all EU legislative acts prohibiting discriminatory conduct are addressed to specific grounds of discrimination within specific subject areas, rather than precluding in a generalised manner any discriminatory treatment. Here I have in mind, in addition to Directive 2000/78, which establishes a general framework for equal treatment in employment and occupation by reference to religion or belief, disability, age and sexual orientation, measures such as Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, (16) and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. (17) These measures do not prohibit discrimination in a generalised way but on grounds spelled out in the acts concerned.

25. Thus, a contrary conclusion to the effect that a generalised link between Member State and EU labour markets law is sufficient to engage EU fundamental rights protection at national level, would breach the established boundary on the outer limit of EU fundamental rights law. Indeed, the Court has held that, while EU fundamental rights law encompasses the general principle of non-discrimination, and binds the Member States where the national situation at issue falls within the scope of EU law, ‘it does not follow from this that the scope of Directive 2000/78 should be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof’. (18)

26. Finally, I do not accept the arguments of Mr Kaltoft to the effect that the general principle of EU law precluding discrimination on grounds of age, which is now reflected in Article 21(1) of the EU Charter, and which can, in some circumstances, have horizontal direct effect between two private parties, assists his case in any way. (19) There is nothing in the relevant age-discrimination rulings pointing toward the existence of a general principle of law precluding discrimination in the labour market generally. Nor can constitutional provisions common to a handful of Member States, or a protocol to the ECHR, such as Protocol 12 to the ECHR (that entered into force on 1 April 2005) establish a general principle of law which would oblige Member States to combat discrimination on grounds which, unlike age, are not spelled out in the Treaties or in EU legislation. Moreover, Article 14 of the ECHR cannot expand the competence of the European Union with regard to the principle of non-discrimination as protected by Article 21 of the Charter.

27. For these reasons I propose that the Court should give a negative answer to question 1. From that it follows that it is not necessary to answer to questions 2 and 3 as they stand in the order for reference. (20)

C – Can obesity be considered as a ‘disability’ (question 4)?

1. The concept of disability under Directive 2000/78

28. I note at the outset that the meaning of the notion of a disability under Directive 2000/78 has been discussed extensively in the Court’s case-law. The core elements of it are as follows.

29. The concept of ‘disability’ is not defined by Directive 2000/78, and nor does the directive refer to the laws of the Member States for its definition. (21) Thus, an autonomous and uniform interpretation of ‘disability’ has been developed in the Court’s case-law, and more recently against the background of the United Nations Convention on the Rights of Persons with Disabilities, which the European Union approved by a decision of 26 November 2009. (22) The Convention forms an integral part of the EU legal order from its time of entry into force. (23) It is also worth emphasising that Directive 2000/78 must, as far as possible, be interpreted in a manner that is consistent with the UN Convention. (24) The Court has held that the purpose of Directive 2000/78, as regards employment and occupation, is ‘to combat all forms of discrimination on grounds of disability’ (25) (my emphasis.)

30. The notion of ‘disability’ for the purposes of Directive 2000/78 must be understood as referring to limitations which result, in particular, from (i) long-term (26) (ii) physical, mental or psychological impairments (iii) which in interaction with various barriers (27) (iv) may hinder (v) the full and effective participation of the person in professional life (vi) on an equal basis with other workers. (28) The Court has further held that the expression ‘persons with disabilities’ in Article 5 of Directive 2000/78 must be interpreted as encompassing all persons having a disability corresponding with this definition. (29)

31. The scope of Directive 2000/78 cannot, through reference to the general EU law principle of non-discrimination, be extended by analogy beyond the grounds of discrimination listed in Article 1 thereof. (30) Therefore sickness as such is not a ground of discrimination that is prohibited by Directive 2000/78. (31)

32. Hence, while there is nothing in Directive 2000/78 to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness, (32) it is established in the case-law that ‘if a curable or incurable illness’ entails a limitation corresponding with the definition above, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78, (33) if medically diagnosed, (34) and the limitation is a long term one. (35) The Court has held that it ‘would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability’. (36)

33. Taking into account the objective of Directive 2000/78, which is, in particular, to enable a person with a disability to have access to or participate in employment, the concept of disability must be understood as referring to a hindrance to the exercise of professional activity, not only to the impossibility of exercising such activity. (37) The UN Convention acknowledges in recital (e) that ‘disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’. Thus, in the second paragraph of Article 1 of the UN Convention the words ‘in interaction with various barriers’ refer to attitudinal and environmental barriers.

34. Hence, an illness or an anatomical or physiological defect such as the absence of an organ does not itself amount to a disability in the sense of Directive 2000/78 if it does not represent a limitation that hinders that person’s full and effective participation in professional life on an equal basis with other workers. For example, absence of a bodily function or organ, or an illness requiring particular attention, continuous medication and control may be a physiological or psychological burden to the person concerned, but not render impossible the full and effective carrying out of work, or hinder participation on an equal basis in professional life in general. (38)

35. This explains why the Court held in Z that a woman who had no uterus, and who was refused maternity leave by an employer after becoming a mother via surrogacy, when maternity leave was available for women becoming mothers through birth and adoption, was not suffering from a disability within the meaning of Directive 2000/78. The Court held that it was ‘not apparent from the order for reference that Ms Z’s condition by itself made it impossible for her to carry out her work or constituted a hindrance to the exercise of her professional activity’. (39)

36. The Court had earlier held, in slight contradiction with paragraph 81 of the judgment in Z, that even carers of those that suffer from a disability also benefit from the protection afforded by Directive 2000/78. Thus in Coleman no connection was made between the disability in issue, and the particular work in issue (and nor for that matter did this connection appear in HK Danmark). In Coleman the Court considered whether Directive 2000/78 encompassed a situation in which an employee who was not disabled herself was discriminated against on the basis that she cared for a disabled child.

37. The Court found in Coleman that the principle of equal treatment in the area of disability did not apply to a particular category of persons but by reference to the grounds mentioned in Article 1 of the directive. Consequently, it did not follow that the principle of equal treatment it was designed to safeguard was limited to people who themselves had a disability within the meaning of the directive. Rather, Directive 2000/78 had the objective of creating within the Union a level playing field as regards equality in employment and occupation. (40)

38. Hence, it is sufficient that a long term condition causes limitations in full and effective participation in professional life in general on equal terms with persons not having that condition. No link has to be made between the work concerned and the disability in issue before Directive 2000/78 can apply.

39. So, for example, a wheelchair bound travel agent who is dismissed because a new owner sees her disability as inconsistent with a new image for the agency that he wishes to develop will not be precluded from relying on Articles 1 and 2 of Directive 2000/78 just because all her co-workers also perform the task required seated, so that the job in question is not affected by her condition. This is significant due to arguments made by the Municipality of Billund, Denmark, and the Commission appertaining to the successful execution by Mr Kaltoft of the job of childminder over the course of 15 years. I will address these in Part III C 2. below.

40. I complete my analysis of the key legal provisions by noting that, pursuant to recital 17, Directive 2000/78 imposes no obligation to maintain in employment an individual who is not competent to perform the essential functions of the post concerned, but this is without prejudice to the obligation appearing in Article 5 of Directive 2000/78 for reasonable accommodation to be provided in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities. This means that employers are to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures result in the imposition of a disproportionate burden on the employer. (41)

41. As can be seen from the above discussion, the principles elaborated by the Court to determine the meaning of disability reflect a broad perspective on the types of conditions that fall within its ambit. In my view this means that the case-law, like the pertinent EU legislation, has adopted, following the approach of the UN Convention, a social and not a (purely) medical model of disability. (42)

2. The ability to carry out work does not exclude disability

42. As already noted, the Court’s case-law has referred to impossibility of carrying out work or hindrance in the exercise of professional activity. (43) This reflects a distinction between absolute or relative incapacity in relation to specific work, and full and effective participation in professional life in general.

43. This distinction is important because the Municipality of Billund, Denmark and the Commission argue that it cannot be contended that Mr Kaltoft’s obesity entails a limitation that may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers because he worked for 15 years as a childminder with the municipality, and he has participated in professional life on an equal footing with other childminders in their employ. In other words, Mr Kaltoft’s obesity may not necessarily have impededhis work as a childminder.

44. It is true that in relation to the impossibility of, or the existence of obstacles to, the carrying out of specific work, the applicability of the concept of disability depends on the concrete circumstances of the work in question, not abstract medical or social insurance classifications concerning the degree of the impairment as such. As Advocate General Bot has recently observed, what is decisive is the ‘obstacles’ a person encounters when they come into contact with that environment. (44) However, there can be long-term physical, mental or psychological impairments that do not make impossible certain work, but which render the carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing.

45. To return, then, to the example mentioned above of a wheelchair bound travel agent. Working from a wheelchair is an obstacle to full and effective participation in professional life on equal terms with persons not having that condition, because of the physical difficulties that inevitably arise in performing tasks, even if it does not affect the capacity of the person concerned to carry out the specific work in question.

46. It is established that Directive 2000/78 aims in particular at ensuring that persons with disabilities have access to, and can participate in, employment. Therefore, the concept of disability must be understood as referring to a hindrance to the exercise of professional activity, not only to the impossibility of exercising such activity. (45) Moreover, the argument above put forward by the Municipality of Billund, Denmark, and the Commission would have the absurd result of excluding from the scope of Directive 2000/78 persons who either already had a disability when they managed to secure a specific job, or who acquired a disability in the course of an employment contract, but who managed to keep working.

47. Hence, as I have pointed out above, it is sufficient that a long term condition causes limitations in full and effective participation in professional life in general on equal terms with persons not having that condition. Moreover, it follows from the Court’s ruling in Coleman that the relevant disability can even have been acquired not by the person who is discriminated against, but by a person in the care of the employee, who seeks to rely on Directive 2000/78. Thus, it need not be impossible for Mr Kaltoft to carry out his work as a childminder with the Municipality of Billund before he can rely on the disability discrimination protection afforded by Directive 2000/78. The case-law merely requires him to meet the definition reproduced in paragraph 30.

48. For the sake of completeness I refer to the issue, discussed at the hearing, of whether falsely presumed disability, and discrimination resulting therefrom, is captured by Directive 2000/78. In other words, is there prohibited discrimination on grounds of a disability when an employer believes unjustifiably that an employee suffers from a disability and is thus limited in his or her capacity to perform tasks adequately and is mistreated as a result? (46)

49. In my opinion it is not necessary to take a stand on this difficult legal question in the context of the present preliminary reference. This is because it is not contested that Mr Kaltoft is obese. If the national court finds that his condition amounts to a disability, and that Mr Kaltoft has been dismissed because of it, then any difference in treatment will be on the basis of real and not only presumed disability.

3. Does obesity amount to a disability?

50. Obesity is usually measured with reference to body mass index (BMI) which is the result of a person’s weight expressed in kilogrammes divided by square of the height in metres (kg/m²). The WHO ranks obesity into three classes by reference to the BMI. Persons with a BMI of 30.00 to 34.99 are Obese class I, persons with a BMI of 35.00 to 39.99 are Obese class II, and persons with a BMI in excess of 40.00 are Obese class III, (47) which is sometimes referred to as severe, extreme or morbid obesity.

51. According to the preliminary reference and Mr Kaltoft’s written observations, he has been obese for the whole of his employment with the Municipality of Billund. In 2007 his BMI was 54, representing extreme obesity. Mr Kaltoft explains further in his written observations that he has, during the course of his employment, been referred by medical professionals for a gastric operation that was aimed at reducing the volume of his stomach. The operation, however, could not be completed because of an acute medical incident that arose during it. In my opinion this needs to be taken into account by the national court in deciding whether Mr Kaltoft’s illness has been medically diagnosed in conformity with the test laid down by the Court inHK Danmark on the circumstances in which long term illnesses can be considered to be disabilities.

52. Mr Kaltoft argues that the WHO considers obesity to be a chronic and durable illness. Furthermore he points out in his written observations that obesity has been considered to be a disability under the law of the United States of America. (48) According to Mr Kaltoft, obesity can entail physical limitations that create obstacles to the full and effective participation in professional life, either because of reduced mobility or because of pathologies or symptoms that result from it, and it can equally entail limitations on the employment market by reason of prejudice on the basis of physical appearance.

53. The Government of Denmark and the Commission seem to agree that obesity of a certain severity may fulfil the criteria set out in the Court’s case-law relating to the concept of a disability in the sense of Directive 2000/78, the establishment of which, however, is a matter for the national court.

54. I note that classification of obesity as an illness by the WHO is not as such sufficient to render it a disability for the purposes of Directive 2000/78. This is so because, as explained above, illnesses as such are not encapsulated by Directive 2000/78.

55. I am also of the opinion that, in cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability.

56. However, ‘mere’ obesity in the sense of WHO class I obesity is insufficient to fulfil the criteria in the Court’s case-law on ‘disability’ under Directive 2000/78. In fact, for a person of Mr Kaltoft’s height (1.72 m) a weight of 89 kg is sufficient to lead to BMI over 30. In my opinion, most probably only WHO class III obesity, that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood, that amount to a ‘disability’ for the purposes of Directive 2000/78.

57. This position does not entail extension of the bases of discrimination listed exhaustively in Article 1 of Directive 2000/78, in the sense excluded by the judgment in Chacón Navas. (49) As the Court has already observed, recital (e) of the UN Convention acknowledges that disability is an evolving concept. (50)

58. Finally, as I have already mentioned in paragraph 32, the Court has held that it ‘would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability’. (51) Therefore, in the context of obesity, it is irrelevant for the purposes of Directive 2000/78 whether the person concerned became obese due to simple excessive energy intake, in relation to energy expended, or whether it can be explained by reference to a psychological or metabolic problem, or as a side-effect of medication. (52) The notion of disability under Directive 2000/78 is objective and does not depend on whether it is ‘self-inflicted’ in the sense that the person has contributed causally to the acquisition of the disability. Otherwise, physical disabilities resulting from conscious and negligent risk-taking in traffic or in sports, for example, would be excluded from ‘disability’ in the sense of Article 1 of Directive 2000/78.

59. At the hearing, the representative of the employer was concerned that admitting obesity in any form as being a disability would lead to intolerable results because alcoholism and drug addiction could then, as serious illnesses, be covered by that notion. In my opinion this concern is misplaced. It is true that, in medical terms, alcoholism and addiction to psychotropic substances are diseases. This does not, however, mean that an employer would be required to tolerate an employee’s breach of his contractual obligations by reference to these diseases. For example, a dismissal because the employee comes to work intoxicated is not based on the disease of alcoholism or drug addiction as such, but is a breach of the employment contract which the employee could have avoided by abstaining from consuming alcohol or the substance in question. Any employer is entitled to expect such an employee to seek the medical treatment that is necessary for him to be able to properly perform his obligations under the contract of employment. It is worth recalling that Article 5 of Directive 2000/78 merely requires employers to provide ‘reasonable accommodation’ to persons with disabilities.

60. For these reasons I propose that question 4 is answered in the sense that only severe obesity can amount to a disability in accordance with Article 1 of Directive 2000/78, and only when it fulfils all the criteria set out in the Court’s case-law on the concept of disability. It is for the national Court to verify whether this is the case with respect to Mr Kaltoft.

IV – Conclusion

61. For these reasons I propose that the Court should answer questions 1 and 4 of the of the order for reference of the Retten i Kolding as follows:

(1) EU law does not include a general principle prohibiting employers from discriminating on grounds of obesity in the labour market.

(2) Severe obesity can be a disability covered by the protection provided in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation if it, in interaction with various barriers, hinders full and effective participation of the person concerned in professional life on an equal basis with other workers. It is for the national court to determine if this is the case with respect to the plaintiff in the main proceedings.

1 – Original language: English.

2 – For an overview of the problems in Europe see e.g. the Commission’s White Paper entitled A Strategy for Europe on Nutrition, Overweight and Obesity related health issues, COM(2007) 279 final.

3 – Obesity is not a clear-cut phenomenon but ranges from the simple condition of being gravely overweight to morbid obesity. For a discussion, including an assessment of obesity by the WHO, see Part III C. 3. below.

4 – OJ 2000 L 303, p. 16. See notably Chacón Navas, C‑13/05, EU:C:2006:456; Coleman, C‑303/06, EU:C:2008:415; Odar, C‑152/11, EU:C:2012:772; HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222; Commission v Italy, C‑312/11, EU:C:2013:446; Z, C‑363/12, EU:C:2014:159; Glatzel, C‑356/12, EU:C:2014:350.

5 – I note that the Court has recently held that Article 26 of the EU Charter on integration of persons with disabilities ‘cannot by itself confer on individuals a subjective right which they may invoke as such’. Glatzel, EU:C:2014:350, paragraph 78.

6 – Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 23 (my emphasis).

7 – Ibid. See also Pringle, C‑370/12, EU:C:2012:756, paragraph 179.

8 – See notably the guidance provided in Åkerberg Fransson, EU:C:2013:105.

9 – Torralbo Marcos, C‑265/13, EU:C:2014:187, paragraph 33.

10 – Siragusa, C‑206/13, EU:C:2014:126, paragraph 24.

11 – For example, see the analysis undertaken by the Court at paragraphs 24 to 28 of Åkerberg Fransson, EU:C:2013:105. See also Texdata Software, C‑418/11, EU:C:2013:588, where the Court held at paragraph 44 that the situation to hand was ‘specifically governed’ by a (specified) directive. For examples of cases to date in which no link was established with EU law for want of satisfaction of the dual identification requirement, see Vinkov, C‑27/11, EU:C:2012:326; order in Pedone, C‑498/12, EU:C:2013:76; order in Gentile, C‑499/12, EU:C:2013:77; order inSociedade Agrícola e Imobiliária da Quinta de S. Paio, C‑258/13, EU:C:2013:810.

12 – Opinion of Advocate General Wahl in Z, C‑363/12, EU:C:2013:604, point 112.

13 – In this sense Chacón Navas, EU:C:2006:456, paragraph 55.

14 – Siragusa, EU:C:2014:126 paragraph 29, citing Annibaldi, C‑309/96, EU:C:1997:631 paragraph 22, and Kremzow, C‑299/95, EU:C:1997:254 paragraph 16

15 – OJ 2007 C 303, p. 17, explanation concerning Article 21.

16 – OJ 2000 L 180, p. 22.

17 – OJ 2006 L 204, p. 23.

18 – Chacón Navas, EU:C:2006:456, paragraph 56. See also, for example, Betriu Montull, C‑5/12, EU:C:2013:571, where at paragraph 73 the Court held that, at the time of the facts of the proceedings, there was no prohibition in the EC Treaty or in any other provision of EU law of discrimination between the adoptive father and the biological father in relation to maternity leave. At paragraph 72 the Court held that the situation before it did not fall within the scope of EU law.

19 – Mangold, C‑144/04, EU:C:2005:709; Kücükdeveci, C‑555/07, EU:C:2010:21

20 – I recall, however, that the issue of burden of proof in the application of Directive 2000/78 was extensively dealt with in Coleman, EU:C:2008:415.

21 – Chacón Navas, EU:C:2006:456, point 39.

22 – See Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35). Further, according to Annex II of Decision 2010/48, in the field of, inter alia, employment, Directive 2000/78 is one of the EU acts which refers to matters governed by the UN Convention. HK Danmark, EU:C:2013:222, paragraph 31.

23 – HK Danmark, EU:C:2013:222, paragraph 30 and case-law cited; Glatzel, EU:C:2014:350, paragraph 68.

24 – HK Danmark, EU:C:2013:222, paragraph 32; Z, EU:C:2014:159, paragraph 75. This was confirmed recently in Glatzel, EU:C:2014:350, paragraph 70, even though the Court reaffirmed in Glatzel at paragraph 69 that the provisions of the UN Convention ‘do not constitute, from the point of view of their content, unconditional and sufficiently precise conditions which allow a review of the validity of the measure of EU law in the light of the provisions of that convention’, citing Z, EU:C:2014:159, paragraphs 89 and 90.

25 – Coleman, EU:C:2008:415, paragraph 38.

26 – This follows from the second paragraph of Article 1 of the UN Convention. The impairments do not, however, need to have a quality of permanence. They need only be ‘long term’. SeeHK Danmark, EU:C:2013:222, paragraph 39.

27 – According to recital (e) to the UN Convention, these barriers can be attitudinal or environmental. See HK Danmark, EU:C:2013:222, paragraph 37.

28 – Z, EU:C:2014:159, paragraph 80, and Commission v Italy, EU:C:2013:446, paragraph 56, citing HK Danmark, EU:C:2013:222, paragraphs 38 and 39.

29 – Commission v Italy, EU:C:2013:446, paragraph 57 (my emphasis).

30 – Chacón Navas, EU:C:2006:456, paragraph 56.

31 – Chacón Navas, EU:C:2006:456, paragraph 57.

32 – Chacón Navas, EU:C:2006:456, paragraph 46. For a discussion of the relationship between sickness and ‘disability’ see the Opinion of Advocate General Geelhoed in Chacón Navas, C‑13/05, EU:C:2006:184, points 77 to 80, and the Opinion of Advocate General Kokott in HK Danmark, EU:C:2012:775, points 30 to 38 and 46.

33 – HK Danmark, EU:C:2013:222, paragraph 41.

34 – HK Danmark, EU:C:2013:222, paragraph 47. See also the Opinion of Advocate General Kokott in that case at point 28.

35 – HK Danmark, EU:C:2013:222, paragraph 41.

36 – HK Danmark, EU:C:2013:222, paragraph 40. See also the Opinion of Advocate General Kokott in that case at paragraph 32.

37 – Z, EU:C:2014:159, paragraph 77, referring to HK Danmark, EU:C:2013:222, paragraph 44.

38 – See in this respect Z, EU:C:2014:159, paragraphs 79 and 80. As Advocate General Geelhoed observed at point 62 in his Opinion in Chacón Navas, EU:C:2006:184, as ‘long as the genetic defect has not been identified, the person in question faces no discrimination. This may change once it becomes known, because employers or insurers do not want to risk employing or insuring those concerned.’

39 – Z, EU:C:2014:159, paragraph 81. See also paragraph 80.

40 – Coleman, EU:C:2008:415, paragraphs 38 and 47.

41 – Chacón Navas, EU:C:2006:456, paragraphs 49 and 50.

42 – See on this distinction opinion of Advocate General Wahl in Z, EU:C:2013:604, points 83 to 85.

43 – Z, EU:C:2014:159, paragraph 81.

44 – Opinion of Advocate General Bot in Glatzel, C‑356/12, EU:C:2013:505, point 36. See not dissimilarly the Opinion of Advocate General Kokott in HK Danmark, EU:C:2012:775, point 27, the Opinion of Advocate General Wahl in Z, EU:C:2013:604, point 84, and the Opinion of Advocate General Geelhoed in Chacón Navas, EU:C:2006:184, point 58, where he said that it ‘cannot be excluded … that certain physical or mental shortcomings are in the nature of “disability” in one social context, but not in another’.

45 – Z, EU:C:2014:159, paragraph 77, referring to HK Danmark, EU:C:2013:222, paragraph 44.

46 – See paragraph 4.5 of the Report from the Commission to the European Parliament and the Council Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’) COM (2014) 2 final.

47 – See http://apps.who.int/bmi/index.jsp?introPage=intro_3.html. See also http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5917a9.htm.

48 – He refers to the American Disabilities Act of 1990 and the judgment of the United States District, Eastern District of Louisiana, E.E.O.C. v. Resources for Human Dev., Inc. 827 F. Supp. 2d 688, 693-94 (E.D. La. 2011)

49 – Chacón Navas, EU:C:2006:456, paragraph 56.

50 – HK Danmark, EU:C:2013:222, paragraph 37.

51 – HK Danmark, EU:C:2013:222, paragraph 40.

52 – For example, according to one study, ‘[w]eight gain is associated with the use of many psychotropic medications, including antidepressants, mood stabilizers, antipsychotic drugs, and may have serious long term consequences’. Abstract of Ruetsch and Others, ‘Psychotropic drugs induced weight gain: a review of the literature concerning epidemiological data, mechanisms and management’, Encéphale, 2005, cited on http://www.ncbi.nlm.nih.gov/pubmed/16389718.

Obesity can be a disability - EU Court of Justice ruled

2015-02-05T18:25:00.000+01:00

Employers will have to change the way they treat overweight staff following aEuropean Union court ruling that obesity can, in severe cases, constitute a disability.

The landmark decision by the European Court of Justice – in the case of a Danish childminder who lost his job – establishes a precedent that could affect employment rights across the continent. It stops short, however, of declaring obesity to be a protected characteristic against which all discrimination is prohibited.

The complex reasoning did not resolve the case in dispute: the claim by Karsten Kaltoft, who was dismissed by his local city council in 2010. The Luxembourg court referred the claim for compensation back to a Danish court to determine whether Kaltoft’s obesity falls within the definition of disability.

The court heard that Kaltoft weighed over 160kg (25st). His lawyers argued that his weight was one of the reasons he lost his job and that it amounted to unfair discrimination. His employer, Billund city council, has denied that obesity was among the reasons for Kaltoft’s dismissal.

Kaltoft, 50, who is married with two children, told the Guardian: “It’s a victory. It’s taken a long time to get here and I will still have to go through the local court. I was fired because [the council said] I was too fat. I hope the Danish court will eventually rule that that is not OK.

“I had been a childminder for 15 years. Everyone told me I did a good job. I don’t think it was fair [to sack me]. I was already overweight when I got the job. I’m fat. It’s not a lifestyle choice; it’s just the way I am. Most overweight people want to be thinner.” Kaltoft is now working as a lorry driver.

His lawyer dismissed stories that Kaltoft was so large he could not bend down to tie his shoelaces as smear tactics. Kaltoft had, however, repeatedly been asked by the council to lose weight.

His lawyer, Jacob Sand, pointed out that the judgment did not distinguish as to how anyone had become obese. “This ruling clearly establishes that the notion of disability is to be construed to the effect that clinical obesity also may qualify as an impairment enjoying protection under the relevant rule,” he said. “It is the first time ever that a case has been brought at EU level regarding protection as a result of clinical obesity.

“The ruling implies that there will be a shared burden of proof in relation to the discrimination of employees suffering from clinical obesity and that employers in relation to this group of employees will be obliged to initiate appropriate measures in order to remedy any functional defects.”

The judgment is being carefully examined by employment lawyers since decisions by the ECJ are binding across the European Union. In its judgment, the court said: “While no general principle of EU law prohibits, in itself, discrimination on grounds of obesity, that condition falls within the concept of ‘disability’ where, under particular conditions, it hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers …

“Such would be the case, in particular, if the obesity of the worker hindered that participation on account of reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.”

Responding to the decision, Matthew Elliott, chief executive of Business for Britain, which campaigns to change the terms of the country’s EU membership, said: “This ruling could place a huge burden on UK businesses, with employers forced to pick up the bill for the increased waistlines of their workforce.

“This is yet another example of a decision by an EU court with no thought for the consequences or impact on business and the wider economy. “

Tam Fry, spokesman for the National Obesity Forum, said: “This has opened a can of worms for all employers in this country. They will be required to make adjustments to their furniture and doors and whatever is needed for very large people. I believe it will also cause friction in the workplace between obese people and other workers.” One in four adults in the UK is obese, according to latest figures from the NHS.

Omer Simjee, Employment partner at Irwin Mitchell said: “This is a significant ruling and although being ‘fat’ is not enough in itself to be considered disabled, it could if it restricts an individual’s ability to actively and fully engage in their work. That said, it would appear as though there does not need [to be] an underlying medical condition. This is new and will in appropriate cases mean that obesity in its own right can be deemed to be a disability. With one in four adults in the UK being classed as obese, this represents a major headache for UK businesses.”

Naeema Choudry, partner at law firm Eversheds, said: “[This] decision clarifies that, under the European Equal Treatment Framework Directive, obesity is not always a disability per se, but it is a condition which can give rise to discrimination protection.

“Each case must be looked at on its own merits to determine the presence of long-term mental or physical impairments. While obesity is likely to increase exposure to such impediments, therefore, the effect of individual obesity is the critical question, not the degree of obesity.”

Vanessa Di Cuffa, employment law partner at Shakespeares, said: “This is the right decision. Although previous legislation allowed for employees to be protected against other forms of discrimination, it is positive that obesity is now being seriously recognised. Previously, severely obese staff could only seek for suitable workplace provisions to be made under associated conditions such as diabetes, respiratory problems or mobility impairment.

“Employers should continue to promote healthy lifestyles and extend support to workers who are actively trying to reduce their weight. It is right that the EU has moved forward with enshrining this into law. However, employers must continue to, or start, providing appropriate support to staff with obesity issues at any level.”

Julian Hemming, employment partner at the law firm Osborne Clarke, said: “This ruling is a real problem for employers – it’s still not clear enough for them to be sure that they’re going to be on the right side of the law. While the ECJ does not consider obesity a disability in itself, businesses could still face discrimination claims from obese staff if their weight problem is of such a degree that they fall within the definition of having a ‘disability’ in the legislation.” (Guardian)

Threatening Wildcat Strikers with Prison

2010-12-04T20:53:00.002+01:00

Spain reopened its airspace Saturday after it was shut down due to a strike by air traffic controllers, the country's airport authority said. The nation's AENA airport authority said airspace was reopened after the majority of striking air traffic controllers returned to work Saturday afternoon and that conditions had returned to "normal." A spokeswoman for the authority said that there was an adequate number of controllers at Madrid's airport Saturday afternoon to handle 30 takeoffs and landings per hour, about a third the usual traffic.

Earlier Saturday, the Spanish government declared a state of alert allowing authorities to prosecute air traffic controllers who refuse to work, officials said, after the workers declared a surprise strike Friday during one of the nation's busiest holiday weekends. The declaration, published in the government's official bulletin, decrees that air traffic controllers who do not report to work could be charged with the crime of disobedience and face prison time, Deputy Prime Minister Alfredo Perez Rubalcaba told reporters. Spain's constitution says such a state of alert can last for as long as 15 days, he said. The declaration comes after a surprise strike from air traffic controllers paralyzed the nation's airports during a busy travel weekend.

AENA, the airport authority, recommended passengers not go to the airport and instead get in touch with their airlines. Iberia, Spanair, KLM, Air France, easyJet and Ryanair canceled all flights to and from Spain at least through Sunday morning, and it was unclear how the announcement of reopened airspace would affect those plans. Ryanair and easyJet said their cancellations also applied to flights to Portugal. All flights from Paris into Spain were canceled Saturday, the Paris airport authority said. Some passengers at the Madrid airport were leaving to board buses for domestic locations, trips that could take several hours. Authorities also added extra trains and private bus companies added seats to try to alleviate the problem.

Air traffic controllers went on strike Friday, stranding tens of thousands of travelers and prompting the Spanish government to bring in the military to control the air space. Saturday's declaration of a state of alert mobilizes the air traffic controllers as if in a military situation, a spokeswoman for the deputy prime minister said. Military officers at the control towers will tell the controllers that they have been mobilized, and if they decline to work, they can face charges of disobedience that carry the possibility of jail time.

Many of the stranded passengers described being stuck on planes on airport tarmacs. They included families with young children trying to set off on a vacation over the long holiday that continues in Spain through next Wednesday. Auditor Juan Infante said the strike left him stuck in the Madrid airport Saturday morning when he should be on a business trip to Abu Dhabi, United Arab Emirates. He said he was angry with air traffic controllers for taking advantage of a busy travel weekend to make a point. "They waited for these holidays that we have in Spain to get the strike going. They planned all of this," he said. CNN affiliate CNN+ reported that military officers had moved to take control at towers at 10 airports before midnight. There are about 47 airports in Spain. The months-long dispute between the government and the air traffic controllers over conditions and pay reached a climax around 5 p.m. Friday when controllers at airports in Madrid and Spain's Balearic Islands in the Mediterranean walked off en masse. Just a few remained to guide some remaining planes in the air toward safe landings, officials said.

The wildcat strike soon spread to most airports across the nation, affecting hundreds of flights. AENA estimated as many as 250,000 people might be affected, including those at airports and those waiting to go on flights that would be delayed or canceled. Earlier Friday, the prime minister's Cabinet approved a measure regulating the controllers' shifts and work conditions. The new rules also allowed the government to put the military in control of air space in case of a wildcat air controller strike. The government apologized for the inconvenience to travelers in repeated statements and added extra trains from the state-run railway, but not enough to handle everyone stranded at airports. AENA President Juan Ignacio Lema apologized to Spaniards for the disruptions, calling the strike an "irresponsible decision" that has "grave consequences" across the country. He called on controllers "to immediately return to work and stop holding Spaniards as hostages." Spain is undergoing austerity reforms in order to avoid a bail-out package. Looking for way to cut costs, the leftist government of Jose Luis Rodriguez Zapatero is finding itself in the position of fighting against the air traffic control unions who oppose some of these measures, including one to allow private capital for the first time to take minority stake in airport management starting at Madrid and Barcelona airports. Friday's decree sought to tighten control over controllers work conditions and schedules. The controllers are seen as well-paid, with great flexibility in taking time off.

(CNN)

Internship Programs Under The Fair Labor Standards Act

2010-11-16T17:20:00.000+01:00

A few days ago we published an opinion about unpaid internships. The present post shows US Department of Labor's non-official point of view concerning “for-profit” private sector employers.

Background

The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.” Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer. Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met. Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.

The Test For Unpaid Interns

There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term "suffer or permit to work" cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

The following six criteria must be applied when making this determination:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad. Some of the most commonly discussed factors for “for-profit” private sector internship programs are considered below.

Similar To An Education Environment And The Primary Beneficiary Of The Activity

In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit). The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern. On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.

Displacement And Supervision Issues

If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

Job Entitlement

The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.

McDonald's Ordered to Pay for Making Former Employee Obesed

2010-11-13T10:32:00.000+01:00

The McDonald's fast-food empire nets around $22 billion a year by serving its less-than healthy entrees to millions of patrons around the world -- but now, in a twist of irony, they'll be paying a pretty penny to one man who was forced by the company to eat the stuff. A former restaurant manager in Porto Alegre, Brazil was recently awarded over $17,500 dollars after he gained 65 pounds performing mandatory quality-control tests every day for 12 years. Evidently, he's not lovin' it -- his portly new figure, that is.

According to Folha de Sao Paulo, when the unnamed former McDonald's manager began working for the company at age 18, he weighed in at a healthy 154 pounds. Twelve years later, after being forced to eat samples of food every day to ensure quality standards, he tips the scales at around 230 pounds.
While the plaintiff was employed at McDonald's, one of his regular duties required him to eat "too much salt, sugar, and fat," which caused him to develop "high cholesterol, obesity, and muscle weakness." Moreover, employees on duty were not provided with healthier meal options, lest they acknowledge that regularly consuming the food they sell indeed makes people fat.
In siding with the complainant's case, the judges ordered the fast-food giant to pay the former employee $17,500 in damages, and help cover the medical expenses required for the "full restoration of the health of the claimant."
McDonald's has the option to appeal the ruling, though I suspect they'd prefer this unflattering indictment of the food they serve fade away quietly. For those of us who have long known of the dangers from eating too much fast-food, with its often unseemly production methods and strangely invincible qualities, the ruling has far-reaching implications.

(Stephen Messenger)

Goldman Sachs Hit by Lurid Allegations of Sex Discrimination

2010-11-09T01:21:00.002+01:00

The Wall Street bank Goldman Sachs has been hit with a sexual discrimination lawsuit from three former female employees who claim the firm has a testosterone-driven culture of press-up contests on the trading floor, male-dominated golf outings and scantily clad escorts at an office Christmas party.

Filed in New York's federal court, the suit alleges that Goldman's decentralised structure gives broad discretion to managers in assigning pay, responsibility and advancement to employees.

"Goldman Sachs gives its managers, the overwhelming majority of whom are men, unchecked discretion to assign responsibilities, accounts and projects to their subordinates," says the complaint.

"The end result is that managers, whether based on conscious or unexamined bias, most often assign the most lucrative and promising opportunities, and 'seats', to men."

The plaintiffs are Cristina Chen-Oster, a former vice-president in bond sales who worked for Goldman for eight years until 2005; Lisa Parisi, who was in asset management from 2001 to 2008; and Shanna Orlich, an analyst from 2007 to 2008 who alleges she was denied opportunities to become a trader.

Their law firm, an aggressive specialist in class actions, which is also suing BP over its oil spill and Toyota over sticking accelerators, has set up a Goldman-targeted website and is urging other former employees to come forward.

The suit points out that the representation of women gets worse higher up the ranks at Goldman – 29% of its vice-presidents in 2009 were female but women made up only 17% of managing directors, 14% of partners and just four members of a 30-person top management committee.

The latest legal skirmish comes at an awkward time for Goldman, which recently paid $550m (£352m) to settle fraud charges brought by the securities and exchange commission. The bank is the subject of a congressional investigation over alleged unethical conduct in mis-marketing mortgage securities in the run-up to the credit crunch and is struggling to improve its public image.

Allegations in the lawsuit centre on Goldman's "black box" compensation structure, in which employees are given little explanation for variances in their pay, and the plaintiffs describe fierce competition for intangible benefits such as prime seating positions in trading rooms.

"Women at Goldman Sachs are often asked to take on responsibility for training junior employees but then penalised for diverting their attention away from generating revenues for the firm," says the complaint.

The trio make lurid allegations about specific incidents. Chen-Oster, who was paid $800,000 a year but claims her male counterparts earned twice as much, says a male colleague pinned her against a wall, "kissing and groping her" after a Goldman-sponsored staff night out at a topless bar.

Orlich claims she was excluded from golf outings, and recounts displays of "masculinity" including a push-up contest on the trading floor. And she asserts that a 2007 Christmas party for a sales team featured female escorts "wearing short black skirts, strapless tops and Santa hats".

A Goldman spokesman said: "We believe this suit is without merit. People are critical to our business, and we make extraordinary efforts to recruit, develop and retain outstanding women professionals."

Goldman insiders are likely to view the suit as an opportunistic attempt to cash in on the bank's dismal public image. The firm has been targeted by scores of recent legal assaults, including a case brought by the International Brotherhood of Electrical Workers, which complains bankers' bonuses are too high, and a stream of shareholder lawsuits over its alleged mis-selling of mortgage bonds.

Gender discrimination cases against investment banks are nothing new. In London, two former Nomura bankers lost a £3m case against the Japanese firm in April, despite claiming they were taunted by male colleagues who suggested they should be "cleaning floors".

The Equality and Human Rights Commission found last year that women working full-time in the financial sector earn 55% less, on average, than men. And the Treasury select committee has expressed concern that only 9% of board members at FTSE 100 banks are women.

(Andrew Clark, guardian.co.uk)

Are Unpaid Internships Illegal?

2010-11-07T21:52:00.003+01:00

Are any big companies willing to condemn publicly the practice of exploiting the vast army of young, unpaid workers we've come to call "interns"? A show of support from business is long overdue and would be an easy public relations win among the nation's young. So why the silence? Britain's business leaders are never normally shy. Could this suggest they have something to hide?

In recent weeks, the angry voices of exploited interns (and their poorer, excluded friends, currently flipping burgers and pulling pints) have grown louder – and their legal position has been strengthened. In July, a report by thinktank the Institute for Public Policy Research and social enterprise Internocracy condemned most unpaid internships as illegal. They asserted that private companies have a legal obligation to treat interns as "workers", since they are rarely just shadowing and almost always have set hours, obligations and duties to perform. This would mean employers must pay them the national minimum wage.

Even the politicians are on board – at last. All five Labour leadership hopefuls have backed pressure group Intern Aware's campaign for a fairer deal for interns. And David Willetts has finally announced: "The exploitation of interns is unacceptable and employment legislation must not be breached." (Hallelujah! What took you so long?)

But there's a problem. Having sought to clarify the law, the report's authors turned on those they say ignore it, saying:

"Employers often mistakenly believe there is a 'grey area' around internships in the national minimum wage legislation that allows them to take on unpaid interns as long as both sides understand it is a voluntary position – this is simply not the case. The law is, in fact, very clear and the problem is a failure of enforcement."

Where is the clear, decisive voice of British business in this discussion? So far, its only statements on this issue have been muddled and unconvincing. Following tip-offs from the users of my website Graduatefog.co.uk, I've investigated seven cases of well-known private sector brands advertising publicly for long-term, full-time interns, paying expenses only.

In the last few months, the contract publishers who produce the in-house magazines for Tesco, Sainsbury's, Superdrug, Morrisons and Weight Watchers have all openly recruited online for interns to work on their clients' publications for up to six months. These publishers were River, Cedar, Seven Squared and Result. Selfridges and Urban Outfitters went a step further, advertising on their own website for junior staff to work at their head office, also paying expenses-only for full-time roles. The latter's vacancy (in the planning department) was for a period of nine months.

I have contacted all these companies. Some were incredulous. The PR manager for Tesco said:

"I worked for many years as a journalist and work experience/internships are an invaluable way of gaining experience in an industry that is very difficult to get a foothold in. I personally worked on this basis for two national newspapers and was extremely grateful for the opportunity … How do you arrive at the conclusion that experience on a magazine, helping someone at the start of their career to build up contacts and a portfolio, is a guilty secret?"

Other replies were unpleasant. Sainsbury's press officer asked me to remove all mention of the story from Twitter, on the grounds that the three-month internship advertised was with Sainsbury's magazine, not Sainsbury's itself ("they are a completely separate commercial entity"). The HR director at their contract publisher, Seven Squared, also said: "Please remove references to Sainsbury's and Seven Squared from your website and blog." (I haven't.) Some replies were curt ("No comment, Tanya," from Urban Outfitters), while the rest were silent.

Superdrug and Weight Watchers both seemed keen to distance themselves from their contract publisher, River. Weight Watchers' PR manager said:

"As you know already Weight Watchers magazine is run by River Publishing, therefore they will be coming back to you with a response in due course as it is an issue relating to them directly that you are questioning."

Likewise, a spokesperson for Superdrug insisted:

"At Superdrug we take the safety and wellbeing of our colleagues very seriously and would like to confirm that we do not employ unpaid interns in any of our stores or at our head office. We work with a number of agencies who may have people on work experience in their office working on their projects. We have asked them to clarify the status of all such individuals."

A few other replies were downright bizarre. River, which publishes Superdrug and Weight Watchers magazines – both of which advertised publicly for unpaid internships of three months – insisted "our current position is that we do not offer unpaid internships". (Eh?) Cedar appeared to contradict their client Tesco's earlier claim that there was nothing wrong with advertising for an unpaid internship on their magazine, insisting it was a mistake. Their managing director said:

"This was an unapproved advertisement which had not gone through normal Cedar internal processes. It was lodged in error … While we do believe in offering internships on occasion as a way of providing valuable work experience and assessing potential future employees, we always respect the minimum wage legislation."

Morrisons' reply was the most confusing. Their spokesperson wrote:

"We have spoken to our publishing company and appreciate that this was intended as a work-experience placement and not advertised as an employed role. We believe the role was offered by our publishing company with the best intention of providing a valuable work-experience opportunity. We will continue to monitor the type of placements offered by our suppliers to ensure they are fair and transparent to all involved."

(Any idea what that means? Me neither.)

Then, another of my users discovered Dragons' Den entrepreneur James Caan publicly advertising for an unpaid intern. However, the pay and work rights helpline explained that his internship is legal, as the role is within the James Caan Foundation, a registered charity (current legislation means interns working for charities and other not-for-profit organisations are not protected by the national minimum wage laws. A loophole allows them to be defined as "voluntary workers", even when doing the job of a "worker", which must be a paid role if found in the private sector).

Nevertheless, I invited Caan to tea to discuss the matter further (along with my friends at Internocracy, Intern Aware and Interns Anonymous), in the hope of recruiting him as the British businesses' champion for this important cause that is currently demotivating our youth and crippling social mobility. I assumed it would be a PR no-brainer for Caan to get behind our nation's young people. But, 10 days later, I am still waiting for a reply.

When will somebody – anybody – from the commercial world stand up and be counted? At present, interns are stuck and desperately need help. The law seems to be on their side, but their position is too weak to allow them to claim their rights (you try demanding pay while trying to impress a newspaper editor or advertising boss). We need Britain's chief executives and entrepreneurs to take the lead on this, set an example and do what's right. Can they show that British business is great enough to treat its young workers fairly?

(Tanya de Grunwald, guardian.co.uk)