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Employment law developments – obesity, holiday pay claims and Tribunal fees

The end of the year has suddenly seen a flurry of important employment law developments.  Important Judgments on obesity and Tribunal fees, and new…

The end of the year has suddenly seen a flurry of important employment law developments.  Important Judgments on obesity and Tribunal fees, and new Regulations to limit holiday pay claims, have all been issued in the last couple of days.  We summarise the implications of these for you.

Claims based upon obesity

The European Court has handed down the full Court’s Judgment on a Danish claim brought by a child-minder who said he was dismissed due to his obesity (Fag og Arbejde v Kommunernes Landsforening).  It holds that there is no free-standing principle of non-discrimination on grounds of obesity in employment under EU law.  However the obligation not to discriminate against an employee because of their disability (and importantly the duty to make reasonable adjustments), can apply to someone who is unable to undertake activities as a result of their obesity.  This fits with the UK test for defining a disability, which focuses upon whether the individual’s ability to carry out normal day to day activities is adversely effected, not what the cause of that limitation is.

So an employee who is obese may have the protected characteristic of disability.  If you are considering a situation where obesity or body-size is relevant, tread with care, consider reasonable adjustments and take advice.  However this is not because obesity is itself a protected characteristic, it is because the individual’s condition may fit within the relatively broad definition of disability (which is a protected characteristic).  

The full Court has not followed the Advocate-General’s suggestion that protection might be limited to a body mass index of 40 or greater.  It is also very clear from this Judgment that whether or not an employee may or may not have contributed to the onset of their disability is irrelevant to the legal protection given after the onset of the disability.  So concepts of “blame”, which some managers may take into account with disabled employees (such as those who are obese or who have illnesses/injuries caused by abuse of alcohol or extreme sports), have no relevance to the employment decisions you make or whether adjustments to working arrangements are reasonable.

UNISON's judicial review of Tribunal fees

This has failed in the High Court for the second time.  Unison argued that the introduction of Tribunal fees: has meant that European law rights cannot be effectively enforced; and amounts to indirect discrimination against women (which the Government could not justify). This challenge focussed on the statistics which show a significant drop in claims.  It has been rejected on both counts, so Tribunal fees remain unaltered.  This is unlikely to be the end of the story as Unison are likely to appeal and the Judgment leaves open the possibility of a future judicial review application based upon an actual individual who has found it excessively difficult or impossible to claim, rather than statistics. 

New Regulations about holiday pay claims

New Regulations have been laid before Parliament which are intended to limit how far back in time workers can go when bringing holiday pay claims, but only from the 1st July next year.  The Deduction from Wages (Limitation) Regulations 2014 emanate from the taskforce set up by the government following the widely publicised Bear Scotland EAT Judgment.  A new provision will be added to the rules governing deduction from wages claims, so that certain claims can only go back a maximum of two years and no longer.  An additional amendment will also expressly prohibit breach of contract claims based upon Working Time Regulations’ holiday.

There is an obvious question as to whether these Regulations are needed at all.  Whilst good for businesses in providing added certainty (in the future) about historic holiday pay liabilities, the two year limit will only be relevant if either: a worker has not had more than a three month break between their European-based (Regulation 13) holiday, which will be unusual; or if the Bear Scotland Judgment’s ruling on time-limits is overturned by the Court of Appeal.  What the Regulations are likely to do, is lead to more grievances and claims in the period between now and the end of June, as if a worker wishes to have any argument that they can recover a longer period of holiday pay they will have to entered a claim before July. 

This amendment on time-limits is aimed at holiday pay claims and does not extend to all unlawful deduction from wages claims, which will continue to have no limit on how far back claims can go as long as they are brought (or ACAS contacted) within three months of the last of the series of deductions.  Assuming the Regulations come into force as intended, unlawful deduction from wages claims for back-pay for fees, bonuses or holiday pay will only be able to recover two years lost pay. However in our view the Regulations are not well drafted, meaning there may be a far broader category of deductions claims caught by the two year limit.