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The Range of Reasonable Responses Newsletter 
May 2018


Happy GDPR day!

May has gone rather more quickly than I would have liked and I have a horrible feeling that this newsletter is going to go out just as the GDPR comes into force. This is not one of 'those' emails. The idea that everyone has to re-subscribe to every mailing list they are on is just a myth.

To be honest, I have spent much of this year trying to avoid talking about this rather tedious and overblown subject. Its not that I don’t think it is important. The new law – a combination of the EU Regulation and the Data Protection Act 2018 (which got Royal Assent just in the nick of time) – probably makes some important changes. The trouble is it also makes a much larger number of unimportant changes. The task is telling one from the other.  

My gut instinct (and this really isn’t advice – anything but that) is that not much of the important stuff will turn out to be particularly relevant to the processing of HR records. I really don’t see very much  that will have a big impact on the processing of employee data - at least nothing really new. Even if I’m wrong about that, I think there’s a good chance that the important stuff will only become apparent over time and employers will be able to adapt accordingly. May 25th is the start of a data protection journey rather than a deadline.

I can’t believe I just used the J word – but I sort of mean it. As long as employers take the handling of employee data seriously and have appropriate security in place; as long as they think about what harm might be caused to an employee through the inappropriate use of personal information; as long as they don’t sell their employees’ bank account information to gangs of international fraudsters, then I think most issues can be dealt with as they arise. Give it some time to see what issues emerge and expect many of the things you were worried about on 24th May fade into the background as we realise that they aren’t such a big deal after all. That is exactly what happened after the Data Protection Act 1998 came into force and I don’t see why it won’t happen this time too.

Discrimination v Unfair dismissal

Meanwhile some proper employment law is happening. I was particularly glad to see the Court of Appeal decision in City of York v Grosset. Last year, when I spoke at the ILS Spring Conference, I identified this as a potential key case of the future and the I think the Court of Appel decision tells us two important things. The first is that in a case of s.15 discrimination (that's unfavourable treatment because of something arising in consequence of a disability),  the employer needs to know about the disability, but does not need to know about the link between the disability and the ‘something’ that leads to the unfavourable treatment. In this case the employer knew the employer had cystic fibrosis but did not know that as a result he was less able to work longer hours to keep on top of his workload, leading to increased stress culminating in a serious lapse of judgment when he showed a horror film to vulnerable teenagers. The Court of Appeal held that their ignorance of what lay behind this misjudgement was no excuse.

Actually this first point was always pretty obvious. If there was a requirement for the employer to know about the link between the 'something' and the employee's disability then the Equality Act would have said so - and it doesn't.. The more interesting point deals with justification. There is no discrimination under s.15 if the employer can show that the unfavourable treatment is a 'proportionate means of achieving a legitimate aim' (by the way, that phrase occurs 14 times in the Equality Act - I just counted!) . In Mr Grosset’s case the Tribunal found that his dismissal was fair – dismissal was within the range of reasonable responses – but that the employer had failed to show justification for the unfavourable treatment.

The Court of Appeal confirms that there is no contradiction here. In a previous case (O'Brien v Bolton St Catherine's Academy) the Court of Appeal had suggested that that the unfair dismissal test for reasonableness and the s.15 test for justification would lead to the same result. In Grosset the Court says that suggestion is wrong.In an unfair dismissal case the Tribunal has to be careful not to substitute its own view for that of the reasonable employer. In a discrimination case, however the Tribunal is free (in fact obliged) to take its own view of the proportionality of the employer’s conduct.  A crucial point here was that the employer had failed to properly address Mr Grosset’s issues around workload and stress and so had contributed to the situation. Frankly it seems to me that the employer was lucky not to lose on the unfair dismissal point too – it really just goes to show what a weak right unfair dismissal can be.

This case was unusual because it was about misconduct. But the real impact of the decision lies in what it means for long-term absence dismissals. Most long-term ill-health issues will amount to a disability and the employer’s investigation of the medical position will mean that it knows that the employee is disabled.  What is more, the link between the disability and the absence will be obvious – even though there is no need for it to be so. To meet the ‘proportionate means of achieving a legitimate aim’ test the employer will have to be able to show just what the impact of the employee’s continued absence is and explain why it is necessary to bring the employment to an end. In particular, an employer had better make sure that it has done all that it could be expected to do to enable the employee to return to work. It will not be good enough to just let the sick pay clock run out and then say ‘so are you coming back then or what’? Tribunals will want to see proactive measures aimed at a finding a way for the employee to remain in employment.

How far do employers have to go? I haven’t the foggiest. Different Tribunals will take differing views of what is proportionate and what isn't. For employers, employment law is all about risk management. What we can say about City of York v Grosset is that the risk of dismissing disabled employees just got bigger.  

Parish notices

It was great to see everyone at the West London CIPD earlier this month – as ever I really enjoyed the session (although the debate about holiday pay for term-time only workers got surprisingly heated!). My next public outings are all to do with employment law in the education sector. I’m speaking at the Local Government Association’s Schools’ Workforce Policy and Employment law Conference which is being run twice. We are in London on 27th June and York on 12th July. There will be a lot to talk about - including safeguarding, suspension and showing inappropriate horror films to vulnerable teenagers. .

Thanks again for subscribing to this newsletter. By reading it you consent to me selling your data to the Russian Mafia.

Enjoy the summer.



(I'm joking about the Russian Mafia)

Copyright © 2018 Darren Newman Employment Law Ltd, All rights reserved.

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