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Farrer & Co | Holiday round up - some cases you might have missed

For those of you lucky enough to not have been in the country over the past couple of rainy weeks, here is a one stop catch up on some interesting cases you have missed:

Vicarious liability – Various claimants v Barclays

The High Court held that Barclays were liable for the sexual assaults committed by a doctor they had engaged (on a self-employed basis) to carry out medical examinations on job applicants

This continues an existing line of case law (see for example here) which looks at whether (i) the relationship was one of employment or "akin to employment", and (ii) the assaults had a sufficiently close connection to employment or quasi-employment.

Employers don't always expect to be liable when employees or workers harm those they were engaged to protect. This case again confirm that they can.

Religious discrimination – Trayhorn v Secretary of State

  • The EAT held that an employer can discipline an employee who condemns homosexuality based on their religious belief.
  • In this case the employee discussed a passage in the bible which condemns homosexuality during a Prison church service.
  • The EAT again confirmed a line of case law (as detailed in previous blogs here and here) that disciplining for inappropriate actions or behaviour is not discriminatory, even if the underlying reason for the actions or behaviour is given as being based in religion.

Holiday pay (yes, again!) – Dudley v Willets

  • The EAT found that voluntary overtime which employees normally work (eg on a regular basis) does count towards holiday pay.
  • Part of the reasoning for the court was that this could cause a financial disadvantage to the workers which might stop them taking holiday, which is against public policy.
  • Employers should look again at their overtime arrangements and check they are paying holiday pay correctly.

Liability of non-exec directors - International Petroleum Limited v Osipov

  • The EAT confirmed that two non-executive directors of International Petroleum should be jointly and severably liable for the £1.7million damages payable to Mr Osipov because he was dismissed for blowing the whistle.
  • In this case the NEDS were found be fall within the definition of "workers" (needed to be liable) because they had day-to-day managerial functions
  • This option may well be used by workers to tactically put pressure on organisations via their NEDS (or trustees)

In addition, you may also have missed the start of the consultation into the Vento bands which categorise and put a value on injury to feelings and psychiatric damage claims. These were last updated in 2009 and may now increase to:

Band Reason Range
Lower Less serious cases, such as a one-off incident or an isolated event £1,000 to £8,000
Middle Serious cases which do not merit an award in the highest band. £8,000 to £25,000
Upper Most serious cases, such as where there has been a lengthy campaign of harassment. £25,000 to £42,000

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