December 2014 Employment Law Newsletter


If you would like to discuss any employment issues please contact
Julie Taylor on 01635 508181

The European Court of Justice has now handed down its decision in the case regarding a male Child-minder in Denmark who had brought claims that his employer had dismissed him because of his weight. The Danish courts referred the case to the ECJ to determine whether obesity was a covered as a disability in the same way as other protected characteristics under the equality act (such as age or race) and whether obesity could amount to a form of disability under the Equal Treatment in Employment Directive – see further comment about the case here

The ECJ ruled that obesity could be a disability if the effects hinder the full and active participation of the person in professional life. This means that being obese does not automatically mean that person is disabled, but if their obesity hinders their participation in the workplace, this effect is likely to mean that they should be considered as disabled under equality legislation and the employer would have an obligation to make reasonable adjustments. This could include providing easier access or different seating.

2.    UNISON: second challenge to employment tribunal fees rejected
The trade union, Unison, had previously sought to instigate a judicial review of the introduction of employment tribunal fees, which failed primarily for a lack of evidence. Further detail here

This second challenge was launched once further statistics were available regarding the significant drop in the number of employment tribunal claims being presented. The High Court found that while the statistics demonstrate that the fees have had a significant effect on the willingness of individuals to bring claims, the statistics do not clarify whether the potential claimants are unable rather than unwilling to incur the costs. Therefore, it is not possible to test whether any EU principles have been breached.

Secondly, the High Court could not find that the fees were indirectly discriminatory against women as the different proportion of claims reflects the different representation of men and women in the workplace.

Further, they determined that the fees regime was justified as it had clear, legitimate aims to transfer some of the costs to the users, discourage unmeritorious claims and encourage settlement before the need for a hearing. Therefore, Unison’s challenge again failed.

3.    More on holiday pay
Previously we have provided updates about the court decisions that have highlighted that non-guaranteed overtime and commission should be included in the calculation for holiday pay and also the risk of potential backdated claims. See our comments here and here

The government has now announced that a cap of two years will be imposed on back dated holiday pay claims. A taskforce has also been set up to look into the effect on business. If you have employees who regularly receive overtime pay or other payments in  addition to their basic salary, it is important to review these procedures and assess any potential risks, seeking legal advice where necessary.

4.    GUIDANCE: BIS calculator
Following on from the introduction of shared parental leave, effective for parents of babies born on or after 5 April 2015, the department for Business Innovation & Skills has published a on-line tool to help future parents calculate their rights under the new scheme. The calculator also takes account of the rights under the existing maternity and paternity leave schemes. You can access the calculator here

Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181 or  [email protected]

Follow Julie on Twitter: @JulieT_GL

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