Happy New Year from everyone at Integra Legal.
Prior to the Christmas and New Year break there were a number of employment law developments in December which seemed to get lost in round of Christmas parties and people getting ready for the festive season.
Can you discriminate against an obese employee?
The European Court of Justice (ECJ) has given its decision in a case called Kaltoft v Municipality of Billund. Mr Kaltoft was a child-minder who claimed that he had been dismissed due to his obesity. The Danish courts asked the ECJ to rule on whether obese employees are protected against discrimination under EU law.
The ECJ confirmed the recent opinion of the Advocate General and found that EU law does not prohibit discrimination on the grounds of obesity in itself, meaning that employees cannot claim that they have been discriminated against just because they are obese. However the ECJ did hold that an obese employee may be disabled, in which case they would be protected against discrimination on the grounds of their disability. Whether or not a particular employee’s obesity renders them disabled will be for national courts to decide.
Where an obese employee is struggling with some of their duties or having a lot of time off work, employers should investigate whether they have any underlying physical conditions such as heart disease, type 2 diabetes, high blood pressure or joint problems and if necessary obtain a medical report to establish this.
If an obese employee’s physical impairments are making it difficult for them to do their job, employers should consider making adjustments to their duties or working environment.
This is a difficult area. If poor performance or sickness absence is serious enough that formal action is being considered, legal advice on how to minimize the risk of a disability discrimination claim should be taken.
Employment Tribunal fees – here to stay?
The High Court has dismissed Unison’s second Judicial Review in relation to the introduction of Employment Tribunal fees. Since 29th July 2013 employees have had to pay fees to commence a claim in the Employment Tribunal. The trade union Unison has sought to challenge the fee regime by arguing that the introduction of fees denies employees access to justice and is unlawful. The first judicial review was lodged in October 2013 and was dismissed by the High Court. Following the publication of numerous statistics showing a dramatic fall in tribunal claims since the fee regime was introduced, Unison lodged a second judicial review in October 2014. This second judicial review has now also been dismissed by the High Court.
This means the fee regime is likely to stay for at least the foreseeable future. Unison has indicated that they will be appealing to the Court of Appeal . However it is likely to take several months for the appeal to take place and a decision to be handed down.
Government limits backdated claims for holiday pay
Following the Employment Appeal Tribunal ( EAT) ruling in Bear Scotland Ltd v Fulton employers must include non guaranteed overtime in holiday pay calculations if this is part of a worker’s ‘normal remuneration’. The government set up a task force to try and limit the potential for backdated claims for unpaid holiday pay from employees. The EAT’s decision did limit backdated claims by holding that employees cannot claim for a series of underpayments where there is a gap in such underpayments of 3 months or more. The government’s task force has announced that it will be introducing legislation to limit any claims for backdated holiday pay to two years. The new limit will apply to any claims brought on or after the 1st July 2015.
This suggests that after July 2015 employees will in effect face two limits on their claims for backdated holiday pay. First, each underpayment of holiday pay in a series of underpayments must not be separated by a gap of more than 3 months. Second, where the series of underpayments of holiday pay are linked over a period of time by gaps of less than 3 months, the employee will not be able to claim for payments going back more than 2 years.
New rights for new parents – Shared Parental Leave
A new system of parental leave will apply to employees who are expecting a baby (or adopting a child) on or after the 5th April 2014. Shared Parental Leave (SPL) will run alongside the existing system of maternity, paternity and adoption leave. Therefore mothers ( and primary adopters) can still take up to 52 weeks maternity/adoption leave, and the father’s right to take 2 weeks Ordinary Paternity Leave after the child’s birth remains. The purpose of SPL is to give parents maximum flexibility about how and when they can take leave after the birth or adoption of a child.
SPL comes into play if a mother /primary adopter chooses to end their 52 weeks maternity/adoption period early. If that occurs, the remaining period of leave can be taken as SPL by the father or co-adopter.
The system of SPL has some eye-catching differences with the current system of maternity and paternity leave:
• Only the first two weeks are reserved for the mother (compulsory maternity leave) meaning that parents can choose how they want to split the remaining 50 weeks between them.
• Both parents can take SPL at the same time.
• SPL can be split up and taken in ‘discontinuous’ blocks by each employee
To prepare for SPL employers should consider taking the following steps before the 5th April 2015:
• Ensure line managers are aware of the right of employees to take SPL, who they need to refer any SPL queries to and the protections given to employees who wish to take SPL have.
• Updating existing family friendly policies on maternity and paternity to refer to SPL.
• Consider introducing a separate policy on SPL.
If an employee asks for SPL consider seeking expert legal advice to guide you through the complex notice provisions.
If you would like to discuss these issues, or any other employment law issue please get in touch on 0115 987 6790, 0203 478 1260 or at contact@integralegal.co.uk