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Range of Reasonable Responses: September 2019.

At this time of year I still get the urge to buy a new pencil case. It's been a busy summer but my work is still seasonal enough that going out to see clients in September has a start of term feel to it. 

Usually when I'm giving clients an employment law update I start by reviewing the current state of play in the development of employment law - what legislation is on the horizon and where do we think the Government will take employment law next? This autumn however I just have to shrug and admit that I have no idea. The range of issues over which Theresa May's Government was consulting when she left office seem to pale in comparison to the changes that we are likely to face if we have an early general election. Will we face a four-day week and the radical reform of trade union law under a Labour Government or a bonfire of employment rights under a deregulatory Conservative one? And of course there is the small matter of Brexit to sort out first. It feels like big changes are on the way - but I have no idea which way the tide will turn. 

Sexual Harassment


In my latest article for West Midlands Employers I look at the case of Raj v Capita Business Services Ltd. You may have seen reports of this case in which a male call centre worker claimed that he was sexually harassed by his female manager who - on more than one occasion - stood behind him at work and massaged his shoulders. The EAT upheld the Tribunal's finding that there was no harassment here and I think they have got this wrong.

The EAT decision focuses on the burden of proof and whether it had shifted to the employer to prove that the unwanted conduct was not related to sex. But by getting too bogged down in this technical argument it seems to me that the EAT has missed the main point. In finding that the conduct was not related to the protected characteristic of sex the Tribunal did no more that ask why the manager massaged the employee's shoulders - concluding that it was a misguided attempt to provide encouragement. But this is surely the wrong question. It is not the manager's motivation that matters but the question of whether the unwanted conduct was in some way 'related to' sex. It is the meaning and context of the conduct that should be the focus, not the intention of the perpetrator. I don't think it's too much of a stretch to say that the Tribunal and the EAT would have treated the allegation more seriously if this had been a male manager massaging the shoulders of a female employee. 

I am not whinging here about the treatment of men. The problem of sexual harassment in the workplace is overwhelmingly a problem of men harassing women. But the law is the same whoever the claimant is and the approach taken in this case suggests that a manager can avoid a harassment claim simply by arguing that he had good intentions. Remember that this was a case in which the conduct was held to be  unwanted and also sufficiently serious to create an offensive working environment for the employee. A shoulder massage is an intimate form of contact and the sex of the individuals involved is clearly an important part of the context of what happened. The Tribunal held that the contact complained of was with a 'gender neutral' area of the employee's body (they really did) but the idea that this means that it did not amount to harassment is just bizarre. 

I don't know whether this one will make it to the Court of Appeal, but I will be hoping for a different outcome if it does.

Classic Dom


The Daily Telegraph has reported that the special adviser sacked by Dominic Cummings and allegedly marched out of 10 Downing Street by armed police has been offered £40,000 to settle any claims she may have.

I wrote a blogpost about this story at the beginning of this month after the Guardian rather breathlessly reported the opinion of an employment law expert that she may have a case for unfair dismissal. The point was that of course she had a case for unfair dismissal, but that there was no real prospect of this ever getting to a Tribunal. 

I don't know whether the Telegraph's report of the offer is true and of course I don't know anything about the personal circumstances of the adviser concerned. If she is able to walk straight into another job then 40K is a great offer. If she remains out of work and the offer includes the notice pay that she would be entitled to anyway (assuming no gross misconduct on her part) then it is pretty modest. But ultimately in cases like this you expect a settlement to be reached at some stage. It is in the interests of both parties to agree a figure that allows them to move on. 

Employment Law in the Supreme Court


With Westminster still reeling from the recent decision about the prorogation of Parliament, the judgment that I am waiting for will attract rather less attention. Back in July the Supreme Court heard argument in Royal Mail Group Ltd v Jhuti. This is a case about an employee whose manager responded to whistleblowing allegations by effectively ensuring that she failed her probation and was dismissed. This was held not to be automatically unfair dismissal because the actual decision to dismiss was taken in good faith by a different manager, relying on information provided by the first.

The Supreme Court has to decide what the principal reason for dismissal was. Was it the circumstances acting on the mind of the manager who actually dismissed the employee, or did it include the motives of the manager who provided the misleading information that led to that dismissal? 

One of the great things about the Supreme Court is that you can watch the arguments being made  - just click on the link above and it will take you to the video. I don't want to make predictions but I think that Sean Jones QC - acting for Ms Jhuti - had the best of it. Ultimately employers can only act through their managers and it seems to me that it would be wholly artificial in a case like this to ignore the fact that the dismissal was essentially brought about by one of the employer's managers because of the public interest disclosure made by the employee.

Although this case focusses on whistleblowing, there are similar issues in cases involving unfair dismissal and discrimination. In Orr v Milton Keynes Council the Court of Appeal held that the fairness of a dismissal was not affected by the fact that the employee's line manager withheld important information about the employee's misconduct from the disciplinary hearing. And In CLFIS v Reynolds an age discrimination case failed because although senior management had based their view of the employee's performance at least partly on her age, the manager who actually terminate her contract on the basis of the information that they had given had no discriminatory motive. I have always been unhappy with these cases and I would love to see the Supreme Court come up with a more rounded way of judging why an employer has behaved in the way that is has and whether its behaviour is reasonable. Judgment should come through this autumn and whatever the result, I think it's one I'll be telling people about well into next year. 

Parish Notices


I really enjoyed speaking at the Incomes Data Research Pay Planning Conference on September 19. IDR has grown from the old IDS where I got my first job and it is great to see it doing so well. If you need information about pay, this is where you need to look. 

Coming up is my annual update for West Midlands Employers on 18 October. This is always a fun event with a big crowd of local government HR folk. For those based in the North West I'll be speaking at North West Employers on 11 December. 

I always enjoy visiting CIPD branches and on October 10 I am speaking at the West London branch in Hammersmith. I think the event has sold out, but last I heard the organisers were trying to find a bigger room so it might be worth checking. I've been working with this branch for many years now and in the Spring we run a one-day event open to HR people of all levels of experience. If you're interested keep an eye out on their website for the details of next year's event. 

These are all public events, but most of my work is delivered in-house for private clients. If you would like a course designed and delivered specifically for your organisation then get in touch. You can check my website for details of the sort of thing that I do.

Thanks for subscribing to this email. 

Cheers

Darren
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