Last week was a big week for employment lawyers, with three significant developments that will impact on employers in 2015. All three have been the subject of significant press coverage already but below we set out brief summaries of these three key developments.
High Court rejects union challenge to employment tribunal fees
On 17 December, the High Court rejected Unison's second challenge to the employment tribunal fees regime that was introduced in 2013.
Unison had previously challenged the legality of tribunal fees, arguing in particular that the level of the fees denies access to justice to those who need it most and that they have a disproportionate impact on women, disabled employees and those from ethnic minorities. The union's first challenge was rejected in February this year for being "premature", with the High Court finding that it was too soon to judge to what extent access to justice was being denied and in particular whether the fees were having any discriminatory effect.
Unison's second challenge was supported by a body of evidence, a significant aspect of which will have been the employment tribunal statistics that showed a significant reduction in the number of tribunal claims since the introduction of fees. The most recent figures for the number of claims lodged in the period July to September 2014 shows that they are 66% lower than the number lodged during the corresponding period in 2013. However the union's second application was also rejected, with the judge commenting that any assessment as to the true impact of tribunal fees on people's ability to lodge proceedings was, in his view, "speculative". Unison has stated that it will appeal this decision to the Court of Appeal, which will decide whether a third attempt to overturn the fees can go ahead next year. Depending on the outcome of the general election, this may be unnecessary with Labour already committed to reviewing tribunal fees if it forms the next Government.
EU obesity decision
In its judgment in the case of Kaltoft v Municipality of Billund, the European Court of Justice held on 18 December that, whilst there is no general principle of non-discrimination on grounds of obesity, severely overweight workers may qualify for protection under the relevant disability discrimination provisions across Europe. Specifically, the Court held that obesity will amount to a disability where it "entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers." The Court specifically stated that the origin of the disability is irrelevant.
The Court did not go as far as the Advocate General had previously gone and it stopped short of stating that a specific BMI (body mass index) would be adopted as the cut-off point. Each court will therefore have to consider each case on its merits before deciding whether or not a claimant's weight is so significant that he might be disabled. The Advocate General had suggested that a BMI of 40 might be an appropriate cut-off point. Mr Kaltoft was 1.72 metres tall (5 foot 7 inches) and weighed over 160 kilos (25 stones), meaning that he had a BMI of 54.
We anticipate that the majority of claims that will now arise are likely to be harassment type claims or claims for failure to make reasonable adjustments. The ruling is likely to mean that employers will have to consider very seriously requests for special parking arrangements, larger desks or chairs or the introduction of arrangements to reduce walking or travelling for such employees. Similarly, banter relating to weight could now constitute harassment.
Government announces decision to limit back pay in holiday pay claims
Immediately after the recent Employment Appeal Tribunal judgment in Bear Scotland and others v Fulton and others, in which the EAT ruled that holiday pay should include non-guaranteed overtime, the Government announced that it was setting up a task force of representatives of Government and business who would be assessing the financial exposure employers might face as a result of the decision.
The first results of the task force's work were made public on 18 December, when the Government announced that claims for unpaid holiday pay will be limited, as of July 2015, to a two year period. Anyone wishing to claim for a longer period than two years will have to submit a claim before the end of June 2015. The question of how far back claims for holiday pay could stretch, where there has been an uninterrupted series of deductions, was not dealt with by the EAT in the Bear Scotland case and this news will therefore come as a big relief to employers.