• Lee Calver
  • 22 December 2014

Key changes to employment law to close out 2014

Major Court rulings in the past week that could potentially have severe implications for businesses across Europe have ensured that organisations head into 2015 with plenty to consider.

Is obesity a disability?

According to a European Court of Justice (ECJ) ruling on 19 December 2014, obesity can constitute a disability in certain circumstances. The judgment follows a referral to the ECJ from the Danish courts, where a case was raised by an overweight Danish childminder. Karsten Kaltoft sued his former employer for discrimination after he claimed he was sacked for being overweight.

Following the ECJ decision, Kaltoft will now be re-assessed in Denmark to judge whether his weight means he will be classed as disabled. The Court stated that “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”.

In plain English, this means that theoretically, there is no change in the law because the ECJ has ruled that obesity itself is not a disability, but that the effects of it can be. Therefore, not everyone who is overweight is protected, unless there is a negative effect on their performance at work on a day to day basis.

Practically however, this could pose a real problem to employers who employ workers suffering from joint problems, depression or diabetes amongst other ailments – specifically because of their size – who will be protected by the European Equal Treatment Framework Directive and cannot be dismissed because of their weight.

Furthermore, the ruling dictates that the origin of the disability would be considered irrelevant, so someone who becomes obese due to a poor diet and lack of exercise will receive the same protection as someone whose weight is down to illness. This ruling is binding on all EU states.

So what does this actually mean for employers?

International Workplace HR Consultant, Tar Tumber, said:

“Well, the guidance does not define who is ‘obese’ in terms of an individual’s body mass index.

“Therefore deciding whether an overweight worker is ‘obese’ is a very subjective call, leaving employers open to confusion and risk of claims.

“Furthermore, this ruling can leave employers liable for harassment of such staff by co-workers, meaning they would have to demonstrate they had taken active steps to prevent such treatment. And with an estimated 10-30% of all adults in European Union countries believed to be obese, this issue affects all European businesses.”

Employers will have to manage this situation on a case by case basis and make reasonable adjustments as required. Depending on the nature of the role, this might mean providing larger chairs; alternative company cars; special car parking; widening doors; and clearly protecting employees from verbal harassment. In addition, employers will also need to consider any mobility issues such as lifting or moving items.

Further case law updates will no doubt provide more guidance in this area, but in the meantime, if you need any further assistance, please contact us on +44 (0)871 777 8881.

Holiday pay – cap on backdated claims

You will recall on 4 November 2014, a ruling by the Employment Appeal Tribunal (EAT) changed the way holiday pay should be calculated for many workers.

The ruling was in relation to three combined Employment Tribunal cases where the workers claimed that holiday pay should have included non-guaranteed overtime pay, as well as other additional allowances.

The EAT upheld that by not including the overtime element in the holiday pay calculation, the workers were worse off for taking holidays and/or could be discouraged from using their holiday entitlement as a result of losing pay.

This means that workers must receive their “normal pay” during their four weeks of holiday entitlement under EU law. Following the ruling, this “normal pay” now also consists of the worker’s basic pay together with any other pay the worker regularly receives for doing their job, including overtime payments, standby payments, attendance allowances, emergency call out payments and possible commission (there will be a Tribunal ruling on this aspect in February 2015).

One key question following this decision was the issue of back pay.

Due to the understandable concern from employers, a taskforce was set up comprising of representatives from the Government and business to look into reducing the financial effect. The results are now in with the introduction of the Deduction from Wages (Limitation) Regulations 2014.

The outcome that any Employment Tribunal claims made from 1 July 2015 regarding an unlawful deduction claim are limited to two years before the date the claim (ET1) is lodged. As such, employees cannot claim back pay for a period of longer than two years from the point the claim is made for holiday pay.

Commenting, International Workplace HR Consultant, Heidi Thompson, said:

“This removes the ability for employees of bringing long-term claims for back holiday pay, either in the Tribunal or Civil Courts. However, they don’t apply to claims presented before 1 July 2015 and therefore any claims, particularly significant ones are likely to be presented before then!”

Some good news long term to prevent endless claims, but the risk still remains in place for now. Tar Tumber recently considered the impact on employers and steps to be taken in light of the overtime decisions. Tar’s blog can be found here.

Fit for Work service

Part of the UK Government’s Fit for Work service went live on 15 December 2014. Fit for Work is being delivered in England and Wales by Health Management Ltd and in Scotland by the Scottish Government. In Scotland the service is called Fit for Work Scotland.

As we updated previously, the Government has introduced this service, providing a state funded assessment by occupational health professionals for employees who are off sick for four weeks or more. The purpose of the service is to address the growing cost of sickness absence in the UK.

The first part to go live is the online service offering advice to employers from occupational health professionals, which can be accessed here.

Responding to the launch of the scheme, the Institution of Occupational Safety and Health (IOSH) backed the new service as a useful starting point.

Richard Jones, Head of Policy and Public Affairs for IOSH, said:

“IOSH is pleased to see the introduction of the new Fit for Work service.

“Good advice and the right interventions and work adjustments can help people stay in or return to work and help support health and successful outcomes.”

Mr Jones added:

“Supportive workplaces and well-designed return-to-work plans are important because we know that good, well-managed work can be good for health and wellbeing, whereas prolonged worklessness can be detrimental.”

Going forward, the service will also offer the following:

  • Employees who have been, or are expected to be off work for four weeks or more will be referred to the Service by their GP.
  • Employers will only be able to refer employees in limited circumstances, e.g. where the GP has not done so.
  • An occupational health professional will provide a return to work plan and a case manager will oversee the assessment and implementation.
  • The return to work plan will only be provided to the employer if the employee consents.
  • Employers, employees and GPs will be able to access advice on managing and preventing sickness absence via a phone line and website.

Commenting on the Fit for Work service, Heidi Thompson stated:

“The idea behind the scheme is to assist those employers who have no provisions to manage absence in this way and to complement the schemes of those that do. It remains a concern as to where this service conflicts with advice from other professionals and is an area for further consideration. The full national service is expected from April 2015.”

Employment Tribunal Fees

Since July 2013, anyone wishing to make a Tribunal claim had to pay at the application and pre-hearing stage. As a result, Tribunal claims have dramatically reduced (by over 66%) and whilst the changes have been welcomed by many, others remain unhappy at what they consider is against natural justice.

Unison has been a strong campaigner against the fees; seeking to overturn the decision. Last week (17 December), the High Court dismissed Unison’s appeal.

The Court said there is still insufficient evidence to show the fees are making it more difficult to bring cases to a Tribunal, as opponents to the changes claim.

Mr Justice Foskett said:

“Before the Court could begin to act, it would need to be satisfied that a more than minimal number of people with arguably legitimate claims would find it virtually impossible or excessively difficult to bring such matters before an Employment Tribunal because of the fees that would require to be paid.”

The Court has granted Unison leave to appeal the decision however, and the union has already stated that it will take up this option.

Unison General Secretary, Dave Prentis, said:

“The High Court’s decision is disappointing but we will fight on and do everything possible to ensure that these punitive fees introduced by the Government are abolished.”

The application from Unison challenged the fee scheme on two grounds: prohibitive cost for bringing a claim, and indirect discrimination against women, ethnic minorities and the disabled.

Both Unison and the Equality Human Rights Commission, which intervened, said the fees are too high and the only purpose of the state imposing them was to make money.

Justice Secretary, Chris Grayling, contended that the claims were still premature and that the very generalised nature of the statistics relied upon, with an absence of any concrete examples of specific individuals allegedly denied access to the Tribunals, made it impossible for the Court to find in the claimant’s favour.

Lord Justice Elias, sitting alongside Foskett, said the imposition of fees to help pay for the service was ‘plainly in principle’ a legitimate aim designed to ensure users make a contribution to costs.

Foskett added it was speculative to suggest that a reduction in applications was due directly to the imposition of fees.

There is no doubt that the fees have dropped significantly. Employment Tribunal claims dropped by 72% in the year following the introduction of fees, when comparing August 2012 to July 2013 with August 2013 to July 2014.

We will now await the next stage and see if a further appeal will prove successful for the Union.

If you require any support on these issues, please contact us on +44 (0)871 777 8881, or visit our HR Support page.