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Range of Reasonable Responses: Christmas 2019

It's practically the end of the year and one of the great old traditions of this festive time is a top ten list.

So here are my top ten cases from published in 2019 (at least one was actually decided in 2018, but I'm prepared to stretch the point). These are the cases that I have most enjoyed telling people about in the various updates and talks that I've delivered over the course of the year at conferences and in-house training events around the country. They are not necessarily the most important cases - I'm missing out all sorts of important decisions that I just think are a bit dull or technical. But they have all been useful in discussing the issues that matter most to my clients. If you have heard me speak over the course of 2019 then thankyou for having me and I hope you'll have me back sometime in 2020 when there will be a whole new batch of cases to mull over, debate and occasionally snigger at

So here, in no particular order, is my top ten of 2019

Asda v Raymond

It's the glamour of employment law that appeals to me most. In this case an EAT judge had to spend an afternoon watching CCTV footage of a lorry driver urinating in a delivery yard to see whether a reasonable employer could have concluded that his behaviour compromised food hygiene (turned out that it didn't). The case illustrates how a seemingly clear case of gross misconduct can lead to a finding of unfair dismissal if an employer jumps to conclusions and doesn't listen to what the employee is saying. In this case the manager was convinced that a driver who was 'caught short' and went for a wee in a discrete corner of the yard (but not so discrete that it was out of sight of the cameras) had to be dismissed. As a result, his investigation was entirely one-sided. He was only concerned with gathering sufficient evidence against the employee to prove that the incident happened and didn't concern himself with why it had happened or look at the surrounding circumstances. If he had then he would have picked up on the employee's evidence that his diabetes caused the urgent need to urinate and that there wasn't anywhere lese for him to go. So not only was this an unfair dismissal but it was also disability discrimination 

iForce v Wood

This is a case that I think I could argue either way. An employee has arthritis which is adversely affected by damp and cold conditions. She works in a warehouse and objects when the employer introduces new working practices that will require her to work at different locations throughout the warehouse rather than at her regular workstation. Her point is that if she has to work near the open door it will be colder and damper and bad for her condition. She brings a s.15 'unfavourable treatment because of something arising in consequence of her disability' claim (I wish that had a catchy name) but loses because the employer does a detailed study showing that when the door is open the whole warehouse is equally affected - where you are in the warehouse will make no difference.

I think you could argue (and she did) that her refusal to work under the new arrangements arises in consequence of her disability, because her disability is the reason for her refusal. The EAT holds however that her refusal is based not on her disability but on her mistaken belief that her disability will be affected by the requirement to move around the warehouse. I see the strength in that, but I'm not sure its the right approach. Anyway, it's a good illustration of how tricky s.15 cases can be and how you have to think about the reason for the unfavourable treatment and whether that has 'arisen in consequence' of the disability.

Agoreyo v London Borough of Lambeth

In this case the Court of Appeal overturned a High Court finding that a teacher was constructively dismissed when she resigned immediately on being suspended for using inappropriate force with two primary school children. The legal principle applied by the Court is that the employer only needs to show 'reasonable and proper cause' for conduct which undermines trust and confidence, whereas the High Court had held the employer to the higher standard of showing that suspending the employee was a 'necessary' step. 
The main benefit of this case however has that it has prompted many useful discussions about when and how it is appropriate to suspend an employee and what sort of alternatives to suspension might be explored. 

Raj v Capita Business Services Ltd

This decision is just plain wrong. I include it in my list of favourite cases because talking about how judges can get it wrong is every bit as useful - and enjoyable - as simply passing on their wisdom to others. Here a male employee claimed harassment on the basis that his female manager subjected him to an unwanted shoulder massage while he was sitting at his desk. The Tribunal found that this was not harassment because the shoulders are a 'gender neutral area' and because the intention behind the massage was a misguided attempt to encourage him in his work.

The EAT should have pointed out that sexual harassment is not confined to physical contact with gender specific areas of the body and that the intention of the harasser is neither here nor there. The question is whether the conduct is related to sex - not whether the harassers motivation is based on sex. Instead the EAT allowed itself to be distracted by an argument on the burden of proof and forgot to ask what it was that needed to be proved. Can you imagine a male employee defending a claim in similar circumstances by arguing that he massaged his colleague's shoulders because he just wanted to encourage her?   

Kostal UK Ltd v Dunkley

Not many people are aware of the law on unlawful inducements. Making any sort of offer to a union member is an unlawful inducement if the effect of them accepting it is that they will no longer be covered by collective bargaining (it's more complicated than that, but that will do as a definition for now). In this case the employer sought to resolve a deadlock in pay negotiations with the union by making their final pay offer directly to employees and inviting them to agree to the increase on an individual basis. That was initially held to amount to an unlawful inducement because the effect of accepting the offer would be that for one year at least the employee's pay would not be determined by collective bargaining. 

That reasoning seems sound enough but the Court of Appeal held that such a short-term change was not the intended target of the law on unlawful inducements and upheld the employer's appeal. The Court noted in particular the very heavy penalties that apply when an unlawful inducement is established. Each employee is entitled to a fixed sum in compensation - just short of £4,000 - and since the employer in this case had made the offer twice to almost 60 employees it stood to lose almost £500,000. Since it would have been perfectly lawful to impose the pay deal without making an offer to employees - or indeed to have derecognised the union altogether - it does seem harsh that the employer should face such an eyewatering penalty because it gave employees a choice. I hear that permission is being sought to appeal to the Supreme Court so we may not have heard the last of this case yet.  

Brazel v Harpur Trust

One day I would love to deliver an employment law update that doesn't involve the calculation of holiday pay - but there is no sign of that happening yet. This is a case involving a term-time only casual music teacher whose pay varied during term time but reduced to zero in the school holidays. The employer, relying on Acas guidelines, calculated holiday pay at the rate of 12.07% of total pay. This works well enough for someone who works all through the year, but pays too little to someone whose working time is concentrated in term time. This is because the 12 week average provided for by the Working Time Regulations passes over 'zero' weeks and only includes weeks where pay is due. This means that proportionately the term-time only casual gets a higher rate of holiday pay than a year-round worker. This is fine, says the Court of Appeal. The employer argued that the Working Time Directive would allow a pro rata calculation but, while the Court did not dispute that, it held that the Regulations were clear and that there was nothing wrong with providing for a more generous provision than required by the Directive. This case may also be on the way to the Supreme Court, so it looks like I will be talking about holiday pay throughout 2020 too. 

East London NHS Foundation Trust v O’Connor

This is a case about redundancy payments and trial periods. I find that many employers think they understand how offers of alternative work and trial periods apply in the context of redundancy payments, but actually don't. The crucial thing is that there needs to be a dismissal before the offer of alternative work can take effect and that really isn't the way modern employers tend to approach redundancy. Alternative work usually takes the form of a variation in terms rather than an offer of new employment after the dismissal takes effect and that means the statutory provisions around trial periods don't apply. This means that the reason for the dismissal (if there is one) has to be determined on contractual principles - which won't necessarily help an employee who has resigned because the new role was not working out.

In this case, the employee was eventually dismissed some months after moving to the new role -  and after a period of sick leave - because he refused to agree to make the change permanent. His claim was therefore sent back to the Tribunal to figure out whether this amounted to a dismissal for redundancy. 

Ali v Capita Customer Management; Hextall v Leicestershire Police

We'll treat these cases as just one decision as they were joined together in the Court of Appeal. The principle established by the Court is that an employer is not obliged to pay employees on shared parental leave the same as employees on maternity leave. The decision is actually quite complex with the same issue being approached as a claim of direct discrimination, indirect discrimination and equal pay. The Court looks at each in turn but basically does it best to stamp on any argument for discrimination that a claimant might come up with. The issue might not be entirely decided however as an appeal to the Supreme Court looks likely.

Page v Lord Chancellor; Page v NHS Trust Development Authority

These two cases were not technically joined, but they obviously belong together. Neither is an earth-shattering case in employment law terms, but they do nicely illustrate how discrimination law works in the context of religious belief and how there is a difference between someone's belief and objectionable behaviour that is motivated by it. The claimant was a magistrate who was removed from his post because he indicated that he would refuse to place children for adoption with same-sex couples. His repeated media appearances arguing his case also led to be him being removed as a non-executive director at his local NHS Trust.  His claims for discrimination and victimisation were rejected by the EAT - his behaviour had demonstrated his unsuitability for both roles. 

Fun fact. If you go onto YouTube you can see Mr Page giving an interview to Piers Morgan. Its worth watching for the novel experience of thinking that Piers Morgan is the voice of reason and common sense. 

Parnaby v Leicester City Council

Not many lawyers would put this case in their top-ten - but I like it. It's about the defection of disability and the question of whether a condition is expected to last for a year or more. The employee was dismissed after six months of absence with work-related stress. The Tribunal held that his condition was not expected to last for a year because his dismissal would remove the cause of his illness - his job - and he could therefore be expected to make a swift recovery. 

The EAT held that the question of whether or not he was disabled - and how long his condition was expected to last had to be judged from the perspective of the moment before the decision to dismiss him. The employer could not rely on the very act that was alleged to amount to disability discrimination as the reason for the employee not being able to claim disability discrimination. In any event the Tribunal had overlooked the fact that the condition could be likely to recur - remember it is enough if it 'could well' recur. There doesn't have to be a more than 50 per cent chance of recurrence! 

Parish Notices

So that's 2019 basically done - I hope it went well for you. Rather unusually I have a very busy schedule for January and February with trips to Edinburgh, Derbyshire, Yorkshire, the Midlands, London Hertfordshire and Buckinghamshire. I'm hoping for a snow-free winter!

If you'd like me to come and run a course for you in the Spring then do get in touch soon. If you need something beyond an employment law update then you can visit my website at to get an idea of the sort of things I can do. 

Thanks for all your support over 2019 - Happy Holidays!


PS: Serious employment law nerds might also enjoy three new podcast episodes that I recorded in November, each dealing with a classic employment law case from the archives.
Copyright © 2019 Darren Newman Employment Law Ltd, All rights reserved.

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