This week there have been three developments in Employment Law which are worth noting. These concern restrictions on backdated holiday pay claims, UNISON’s challenge to the employment tribunal fee regime and a decision on whether obesity falls within the definition of disability.
Government to limit Holiday Pay Claims
The Government have announced they intend to introduce the Deduction from Wages (Limitation) Regulations 2014 which will seek to limit the impact of backdated holiday pay claims following the decision in Bear Scotland Ltd v Fulton (see our previous blog on this decision). The Regulations will limit all claims for unlawful deductions from wages to a period of two years prior to the date of lodging the claim. They also explicitly state that the right to holiday pay is not incorporated in employment contracts but is a separate statutory right.
The regulations will apply to claims that are lodged on or after the 1st July 2015, so it is still possible for workers to bring backdated holiday claims for longer periods until this date, so this legislation does not offer an immediate protection to businesses..
UNISON challenge to Employment Tribunal Fees Dismissed
UNISON’s most recent judicial review challenge to Employment Tribunal fees has been dismissed by the High Court. UNISON had brought fresh proceedings on the basis that statistics were now available showing the significant reduction in tribunal claims since the introduction of fees in July 2013.
UNISON’s challenge was based on two arguments:
- The fees are contrary to the EU principle of effectiveness in that they make it impossible or significantly difficult for large numbers potential claimants to afford to bring a claim.
- The fees are indirectly discriminatory with regards to women, ethnic minorities and those with disabilities.
The court found that discrimination was not proved and that, in any case, the fee regime was a proportionate means of achieving a legitimate aim, therefore this argument failed.
The court appeared to consider there to be more force in the argument regarding the principle of effectiveness. They accepted that the statistics showed a ‘dramatic change’ in the number of fees and accepted there was merit in UNISON’s argument. However, they noted that there was no evidence from individual claimants who had been prevented from bringing their claims due to the cost of fees. Therefore, although they felt it is clear that fees are a disincentive, no evidence had been produced by UNISON from prospective claimants who confirmed they were unable, rather than unwilling. to bring their claims. As such, UNISON’s action was dismissed.
However, it appears that if evidence can be produced showing a number of actual individuals with legitimate claims were unable to bring them due to costs, UNISON may have more chance of success. Leave to appeal the decision has been granted and UNISON have announced that they intend to do so.
Obesity potentially falls within the definition of disability
The Court of Justice of the European Union has given its judgement in the case of Karsten Kaltoft v Kommuneres Landsforening regarding whether obesity can fall within the definition of disability.
The court found that there is no EU principle which prohibits discrimination on grounds of obesity as such, but obesity may fall within the definition of disability.
The judgement indicates that the fact of simply being classed as obese does not render an employee disabled: it is the effect which is important. Therefore, if the obesity entails further related medical conditions or causes long term impairments which restrict full and effective participation in employment, an employee may be considered disabled. The Court also makes it clear that the origin of a potential disability is not relevant for determining whether or not a person is disabled.
The case has been referred back to the national courts to determine whether, in the circumstances, Mr Kaltoft should be considered as disabled.
This decision is unlikely to cause a great deal of change. Many medical conditions which may exist as a result of obesity, such as diabetes, are already considered to be disabilities. The main concern for employers should be to have regard to all the circumstances of an employee’s health and whether any difficulties occurring in their job are a result of impairments which may fall within the definition of disability.
Update by Laura MacSporran and Stephen Connolly. If you require assistance in an employment law matter, please complete our online enquiry form.
