<!-- wp:paragraph --> <p>The recent decision in&nbsp;<em>Re S</em>&nbsp;provides a&nbsp;helpful illustration of the careful balancing exercise which must be undertaken&nbsp;when comparing options of adoption and fostering.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Proceedings concerned S, aged 4 years and 8 months. Concerns arose about the mother’s&nbsp;parenting when S was about 2 years old, prompting Local Authority involvement.&nbsp;After the identification of bruising on S’s inner&nbsp;arm&nbsp;which was&nbsp;believed to be non-accidental, public law proceedings were brought. However, the Local Authority did not pursue findings about the origin of the bruising.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In the&nbsp;sixteen month&nbsp;period between commencement of proceedings and the final hearing, S only spent four months in her mother’s care, with close supervision in a residential assessment.&nbsp;The residential placement&nbsp;ended following negative reports about the mother’s ability to care for S, and S moved to live with a maternal aunt and uncle. Unfortunately, they could not offer the care S required.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In early May 2025, S was placed in foster care, where she remained at the time of the proceedings. The mother, at the time of the final hearing, had been seeing S twice per-week with foster carers supervising one of those visits. By the time of the final hearing in late September 2025, S was observed to be well-settled and emotionally secure with her foster carers. The Local&nbsp;Authority&nbsp;applied for a placement order two working days before the final hearing. At the commencement of the hearing, the Local&nbsp;Authority&nbsp;sought a closed adoptive placement, although&nbsp;this position was revised to open adoption with annual face-to-face contact following the social worker’s oral evidence on the first day. The Local&nbsp;Authority’s final care plan proposed to search for an adoptive home for six to nine months, following which they would place S in long-term foster care and explore the possibility of S being placed in long-term foster care</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>At the final hearing HHJ Tolson KC made a care order but refused to make a placement order, preferring long-term fostering for S with contact with her mother at once per fortnight.&nbsp;The Local Authority sought to appeal the refusal of the placement order.&nbsp;Permission&nbsp;was granted on&nbsp;1 December 2025 by Peter Jackson LJ.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Grounds of Appeal</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground 1:&nbsp;failure to undertake an adequate, comparative analysis of long-term foster care or adoption – the&nbsp;‘balance sheet’ approach</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court of Appeal recognised that the applications presented to the court&nbsp;“offered&nbsp;a stark choice – either the Judge approved the application for a placement order for adoption on the&nbsp;basis of the local authority care plan, or he refused it on the basis that S’s future would be better served by foster care.” ([54]).&nbsp;It&nbsp;is&nbsp;integral&nbsp;therefore, the Court made clear,&nbsp;that when reaching any such decision&nbsp;the tribunal&nbsp;undertakes&nbsp;a consideration of competing factors relevant to each option.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>HHJ Tolson&nbsp;KC, however,&nbsp;failed to undertake&nbsp;such&nbsp;a “side-by-side comparative&nbsp;analysis” ([55]).&nbsp;Nevertheless, it was not fatal to the judge’s decision.&nbsp;It was still possible to identify&nbsp;the competing factors which the Judge had weighed in coming to his decision. In particular, the Judge highlighted the ‘box analysis’ undertaken by the social&nbsp;worker and&nbsp;evaluated the Guardian’s analysis of the pros and cons of the available options. Indeed, the Judge had reproduced substantial elements of this within the judgment itself.&nbsp;Although not in tabular form, the Judge’s reasoning was evident in the analysis he had undertaken.&nbsp;Thus, Cobb LJ made clear “a failure to set out the options in a side-by-side balance sheet analysis … will not pave the route towards certain success on appeal.” ([42]) What matters is “whether a judge&nbsp;<em>actually</em>&nbsp;failed to balance the factors in such a way as to lead them into error” (ibid).&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground 2 –&nbsp;consideration of&nbsp;availability of current foster placement as a long-term placement</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The appellants contended that the Judge was not entitled to reach the conclusion “that the carers have expressed a settled desire to care for [S] during her minority” (original judgment [38i]).&nbsp;It was argued that the Judge’s view&nbsp;was&nbsp;formed on the assumption that&nbsp;the current foster carers would&nbsp;be highly likely to&nbsp;continue&nbsp;meeting S’s needs&nbsp;throughout her remaining minority and into adulthood.&nbsp;The foster carers had however only been approved as short-term carers.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Whilst&nbsp;the&nbsp;Court determined that the&nbsp;Judge had “expressed a higher degree of confidence in the long-term potential for the current placement than the evidence at the hearing, taken as a whole, truly permitted”&nbsp;[69],&nbsp;following Peter Jackson LJ’s direction the foster carers had expressed a willingness to provide long-term care for S.&nbsp;This therefore in effect neutralised the second ground of appeal.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground 3 – insufficient consideration of advantages of open adoption</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>As set out above, the Local Authority changed their position as to one in favour of open adoption&nbsp;following the first day of the final hearing.&nbsp;S and her mother, at the time of the final hearing, were seeing one another twice per week. The Judge acknowledged that the mother had been managing the contacts well, with&nbsp;professionals&nbsp;praising&nbsp;the relationship between them. The Judge had recognised that the loss of S’s relationship with her mother would be “highly likely to be detrimental”, considering “that the loss may be irreplaceable” (judgment [38a]).</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Judge&nbsp;set out a template for ‘optimal contact’, with fortnightly contact being&nbsp;deemed the appropriate level.However, the Judge directly grappled with the practical reality that even in&nbsp;a “modern world” of increasing post-adoption contact following&nbsp;<em>Re S (Placement Order; Contact)&nbsp;</em>[2025] EWCA&nbsp;Civ&nbsp;823, that level of contact may very well be too substantial an inhibition on the potential to find an adoptive home&nbsp;([71]).&nbsp;The Judge was accordingly justified in reaching his view.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground 4&nbsp;(a) –&nbsp;the negative assessment of the&nbsp;Local Authority’s&nbsp;<em>ability</em>&nbsp;to find a placement for S</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Local Authority argued that the Judge was unduly pessimistic in relation&nbsp;to&nbsp;this ground. The Guardian’s evidence set out that contact at six times per year would be appropriate, but that it would be “highly unlikely” that purported adopters would be agreeable to that level of contact (judgment [33]).&nbsp;That frequency, it should be noted, was substantially less than that proposed by the Judge.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Reinforcing&nbsp;the Judge’s pessimism&nbsp;was the statistical evidence of the Team Manager of the regional adoption agency. As a result, the Judge made it clear that he “accept[ed]&nbsp;that the (un)likelihood of a placement is not a bar to a placement order, but it must be a relevant factor, especially in a child who, it is common ground, needs to settle (or rather remain settled) now” (judgment [40d]).&nbsp;The Judgewas, again,&nbsp;therefore entitled to reach the view he did.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground 4 (b) – the&nbsp;negative assessment of the&nbsp;Local Authority’s&nbsp;<em>commitment</em>&nbsp;to&nbsp;finding an open adoptive placement</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court of Appeal set out three material facts&nbsp;at&nbsp;which substantiated, and indeed justified, the Judge’s view. They are reproduced in full&nbsp;([75]):</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>i)&nbsp;The authority’s plan prior to the start of the hearing had been to find a closed adoption placement for S under the placement order; only on the second day&nbsp;of &nbsp;thehearing did it change its tune – prompting the Judge’s remark “it has the feel of forensic necessity about it” (judgment [14]);&nbsp;&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>ii)&nbsp;The final evidence of the Local Authority showed that it had “… not seriously considered the option of long-term fostering” for S (judgment [14]); and &nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>iii)&nbsp;The Local Authority had known nothing of the circumstances in which&nbsp;the &nbsp;current&nbsp;foster carers had adopted their children; this showed that “careful thinking on the relative merits of adoption against long-term foster care has been lacking” (judgment [18]).</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground 5 – failure to give adequate reasons for departing from professional&nbsp;recommendations</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Cobb LJ&nbsp;set out that, in coming to his decision, the Judge appropriately addressed the breadth of professional views which he was presented with. He did so by:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>•&nbsp;Quoting extensively from the evidence of the Guardian&nbsp;and the social worker’s final evidence.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>•&nbsp;Considering&nbsp;the depth, or lack thereof,&nbsp;of the Local Authority’s research into the position of the current foster carers</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>•&nbsp;Underlining&nbsp;the unbalanced review of the Local Authority in failing to consider long-term fostering either adequately or at all</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court highlighted that the Local Authority’s change of position&nbsp;during the course of&nbsp;the hearing “redeemed its professional stance to some degree”&nbsp;([76]), but the Judge was fair in his treatment of the matter as a finely balanced one. Indeed, the Court highlighted that&nbsp;the matter was so finely balanced that&nbsp;by the time&nbsp;of the appeal the Guardian’s position had “tilted onto the other side”&nbsp;(ibid).</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>What matters in each individual case is&nbsp;the&nbsp;clarity&nbsp;with which the reasoning&nbsp;underpinning any decision&nbsp;is set out, paired with a balanced&nbsp;evaluation&nbsp;both by the relevant professionals&nbsp;and the tribunal as to&nbsp;the available options.&nbsp;In this respect, it is worth&nbsp;setting&nbsp;out in full&nbsp;- as Cobb LJ did -&nbsp;the words of Peter Jackson LJ in&nbsp;<em>Re D-S</em>&nbsp;(A Child: Adoption or Fostering) [2024] EWCA&nbsp;Civ&nbsp;948; [2025] 1 FLR &nbsp;815:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>“[14]&nbsp;<em>In many cases about children there are&nbsp;</em><em>a number of</em><em>possible plans. One judge might choose one, another judge might choose another.&nbsp;</em><em>So long as the judge takes the correct legal approach, explains his or her thinking, and makes a decision that will work for the child, that is fine.</em><em>&nbsp;We will not allow an appeal just because we might think that another possible plan would have been better. We can only step in if we have been shown that the judge did not approach the decision correctly or explain it properly, or if the judge’s chosen plan will not work</em>”. &nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Practical Takeaways</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>When considering the viability&nbsp;of foster care or adoption:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>•&nbsp;Do not simply compare the options in principle</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>•&nbsp;Adopt a balance sheet approach to&nbsp;provide a structured and detailed analysis of available options&nbsp;as a helpful&nbsp;aide memoire&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>•&nbsp;Despite the advances towards increased post-adoption contact,&nbsp;any welfare assessment must be underpinned by the evidence particular to the relevant child</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>•&nbsp;Fully explore the views of current foster carers and the availability for potential provision of long-term care</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Listen to Parklane Plowden’s latest podcast:&nbsp;<em>Mediating probate and wills disputes</em>. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Chancery barrister Cait Sweeney is joined by barristers Marisa Lloyd and Sarah Harrison, both of whom are specialists in mediations and probate and wills work, to discuss the challenges to overcome during potential disputes.&nbsp; &nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Marisa and Sarah give their top tips on ensuring how the most can be made of a session, how to be fully prepared for a mediation and keeping a client engaged throughout the process.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Listen to the podcast below:&nbsp;</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>In an Appeal thought to be the first to consider the burden of proof applicable to Schedule 1 of the Consumer Insurance (Disclosure and Representations) Act 2012, HH Judge Mark Gargan has handed down judgment confirming that it is incumbent upon insurers seeking to avoid policies to prove, in the event a consumer has made a “qualifying misrepresentation”, that they would not have insured that consumer on any terms.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Defendant, having led no evidence on the point in the court below, was denied its request for the matter to be remitted.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Adam Gould, instructed by Watson Woodhouse Solicitors, acted for the Claimant throughout.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>A copy of the Judgment is available <a href="https://www.parklaneplowden.co.uk/app/uploads/2022/09/22.06.01.kramarzyk.appeal.judgment.handed-down.pdf">here</a>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

<!-- wp:html --> <iframe width="1120" height="730" src="https://www.youtube.com/embed/YQdWjZnbQQk" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe> <!-- /wp:html --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

<a href="https://www.parklaneplowden.co.uk/barristers/robert-dunn">Robert Dunn</a> is an <a href="https://www.parklaneplowden.co.uk/expertise/employment">Employment</a> specialist. To view Robert's original comments, click <a href="https://www.parklaneplowden.co.uk/news/robert-dunn-quoted-by-hr-grapevine-on-labour-pledge-to-grant-the-same-rights-to-all-workers-from-their-first-day">here</a>.<strong>The Current Position</strong>As it stands, everyone in England &amp; Wales whom works, broadly fits into 1 of 3 groups. They could be an ‘employee’, a ‘worker’ or ‘self-employed’. These categories are far from clear cut, and are subject to a minefield of case law. Neither is it helpful that these categories can be defined differently, in different statutes.(Very) broadly speaking though, they are: <ul> <li>&nbsp;<strong>Employees - s.230(1) ERA 1996</strong>: These persons have a contract of service, express or implied. They are subject to control, mutuality of obligation, and must provide personal service;</li> <li><strong>&nbsp;</strong><strong>Workers</strong> - <strong>s.230(3)(b) ERA 1996</strong>: These persons have a contract for services, express or implied. They are should provide personal service, but may not have mutuality of obligation. These persons are categorised by their relationship of subordination to an employer, irrespective of what is on the face of their contract;</li> <li>&nbsp;<strong>Self-Employed</strong>: These persons are not subject to the subordination of a worker. They conduct business genuinely in their own right.</li> </ul> Different persons receive different employment rights, depending on which category they fall into. Crucially, rights also depend on one’s continuity of service. For example, employees require 2 years to claim unfair dismissal, or 26 weeks to complain that they have been subjected to a detriment for requesting training, pursuant to s.63(6)(d)(a) ERA 1996. Such qualifying periods are rife through employment law as we know it.&nbsp;<strong>Labour’s New Deal</strong>On 26^th July 2021, Labour announced their ‘New Deal’, should they be elected in 2024. Essentially, they announced that they would: <ul> <li>Create a ‘unified worker status’. This would include employees, S.230(3)(b) ERA 1996 workers, and ‘those in bogus self-employment’;</li> <li>Remove qualifying periods for employment rights, and give all such ‘unified workers’ ‘full employment rights from Day One’;</li> </ul> Proposals have clearly not crystalised yet, and the devil will of course be in the detail. However, this article seeks to explore some of the potential questions which arise, and the possible effects of such a proposal.&nbsp;<strong>Discussion</strong>From the perspective of those in work, this appears at first sight to be a positive proposal. Whilst employees already have access to ‘full employment rights’, the qualifying periods will be removed. Rights, such as the right to claim for unfair dismissal or claim paternity pay, would be available from the outset. No longer could a less-than-thorough disciplinary or redundancy procedure be applied just before an employee’s 2 years are up.For many workers, the benefits are clear too. The weightier ‘employee’ rights would become open to them, and all without any qualifying periods. Labour have also announced that the requirement to earn £120 per week to access Statutory Sick Pay would also be removed, it being a quasi-qualifying period. The TUC estimate this would bring over 6 million additional workers within the sick pay regime.&nbsp;<strong>The Key Questions</strong>As ever with employment law though (and particularly employment status), the proposal also creates as many questions, as it does gives answers.Firstly, the proposal fails to comment on other definitions of ‘worker’. For example, S.43K ERA 1996 gives an extended ‘worker’ definition, for those not falling within S.230(3)(b). This gives S.43K workers the right to claim for detriments arising from whistleblowing, and does not even require a direct contract with their ‘employer’; per HHJ Eady QC in <strong>Keppel Seghers UK Ltd v Hinds [UK EAT/0019/14/JOJ]</strong>. On the face of the proposal, S.43K workers are excluded. If so, what is the logical basis for there being no widening of their rights at all, but other workers receiving ‘full’ employment rights?Secondly, there is the concept of the ‘bogus self-employed’. The inclusion of this concept, in addition to S.230(3)(b) workers, suggests it adds something more. However, it is entirely undefined. Moreover, key recent UK Supreme Court cases such as <strong>Autoclenz v Belcher [2011] UKSC 41</strong> and <strong>Uber BV v Aslam [2021] UKSC 5</strong>, are aimed at focusing on the ‘reality’ of a relationship to determine whether individuals have been genuinely self-employed or not. Given the <strong>Uber </strong>decision, it is questionable whether this concept of the ‘bogus self-employed’ really widens the scope of protection at all. If it does, it would almost certainly lead to a further raft of extensive satellite litigation to determine where the new boundary would fall. If it does not, why has it been included in addition to ‘workers’?Thirdly, that said, there may be concern for those whom are self-employed. These persons may well not want to be sucked into this ‘unified worker’ definition, given the control and potential tax implications it may have. As an example, many barristers work solely under a particular Chambers, whom provide them work, deal with any complaints against them, deal with their fees, and deduct payments for clerking and expenses. The relationship has features of subordination, yet most barristers would surely be loathed to fall under the definition of ‘bogus self-employed’.Fourthly, there may be concern for workers. Some workers can pay tax as a self-employed person, and this could be threatened. Moreover, many workers enjoy the flexibility that a lack of mutuality of obligation, and perhaps control, brings. If employers are forced to give such individuals ‘full employment rights’, the additional cost may well discourage their employment in the first place. Is it worth employing a casual zero-hours worker on a temporary basis, if they can immediately resign and take you to the Tribunal for unfair dismissal? Further, if employers are forced to give such workers typical ‘employee rights’, there appears no reason not to then subject them to the additional obligations of an employee, and exert a greater level of control, subordination and mutuality of obligation on them. This will be unwanted by many current ‘workers’.Fifthly, the proposal poses questions for other categories of persons. What about apprentices or probationary employees, for example? Such individuals having protection against unfair dismissal, or the right to claim sick pay or maternity pay, ‘from Day One’ may well impact the willingness of employers to take such persons on. And what about Agency workers? Whilst they may still not be the ‘worker’ of the end-user (unless S.43K workers are included), they would almost certainly have ‘full employment rights’ against the agency. That would have profound implications for recruitment agencies, and their profitability.Sixthly, there is the impact upon Tribunals. It is difficult to see how providing millions more individuals with greater employment rights will not lead to more claims. No longer will a Tribunal have a lack of jurisdiction to consider an unfair dismissal complaint because a person is a worker, or does not have continuity of service. What is now the near instant rejection of an ET1 on those bases, would instead become a Preliminary Hearing followed by a 2-day Unfair Dismissal claim. There have also been soundings of the time limit for bringing most Tribunal claims, perhaps being extended to 6 months. Unless such proposals are accompanied by substantial investment in the Tribunal Service, it is difficult to see how this would not further worsen the case backlog.Lastly, the impact upon employer HR teams seems mixed. There must be a practical ease, in understanding all those whom work for you are a ‘unified worker’ with all rights from the outset. Distinguishing between such persons and calculating continuity of service would fall away. That may though be outweighed by the impact of any increase in Tribunal claims.&nbsp;<strong>Conclusion</strong>The devil will of course be in the detail. 2024 is a long way away, and Labour still appear to have a long way to go in the polls to win in any event.Either way though, the proposals are interesting and worthy of discussion. They challenge the current orthodoxy, and some may argue simply continue the movement towards greater protection for those in unstable work, that is evident behind cases such as <strong>Uber BV v Aslam</strong>. As highlighted however, they require substantial clarification and pose risks for the Tribunal system, employers, and those workers whom want to retain the flexibility and freedom that their current role brings.

The claim arose from an RTA in 2019. A claim was brought in the MOJ Portal for PSLA only, with the First Solicitors indicating that there was a claim for vehicle damages, but the same was being pursued outside the portal by another company. The claim exited the portal and thereafter followed numerous communications, including a pre-medical offer from the Defendant for PSLA only, an offer to settle vehicle damages on a without prejudice basis, and an offer to settle the whole claim. In January 2020 the Defendant made a Part 36 offer on “<em>the whole of the claim</em>”. The offer was accepted without a request for further information or attempt to reserve the position as to vehicle damages.At the beginning of 2021 the Second Solicitors, within the same group as the First Solicitors, intimated a claim for vehicle damages. The Defendant initially engaged with the claim, indicating they would settle, before entering a defence founded on the argument that the claim had already been compromised by the 2020 Part 36 offer, and as such the proceedings were abusive.District Judge Hickinbottom, sitting in Sheffield County Court concluded that, as per HHJ Gargan in <em>Hogg v Newton</em>, the words “<em>the whole of the claim</em>” must be given their natural meaning. Save for the presence of special factors, in the context of matters pertaining to an RTA that natural meaning pertained to all claims that may arise from the RTA.The words used must be construed within the factual matrix preceding the offer and acceptance. Regard was paid to the fact previous correspondence had sought to separate the claims, negotiating both PSLA and vehicle damages separately. Those attempts to separate the claims were distinct from the offer on “<em>the whole of the claim</em>”. DJ Hickinbottom concluded that despite the indication on the CNF, the intention of the parties upon making and accepting the offer was clear, and accordingly not only the PSLA claim had been settled.The case is distinct from a developing parallel line of authorities relating to cases whereby the PSLA claim is disposed of, either by way of settlement or judicial determination, within the portal or at Stage 3, see for example <em>Poku v Abedin.</em> Given the frequency with which insured losses are pursued outside of the portal, it is essential for both Claimant and Defendant solicitor’s alike to be alive to the fact that indicating the same on the CNF as per 6.4 of the Protocol, will not necessarily exclude vehicle damages from the scope of a Part 36 offer.To view Bethan Davies' profile, click <a href="https://www.parklaneplowden.co.uk/barristers/bethan-davies">here</a>.

Legal update written by <a href="https://www.parklaneplowden.co.uk/barristers/abigail-telford">Abigail Telford</a>.&nbsp;<strong>What are pen portrait materials?</strong>Pen portrait materials are statements and other documents, such as photographs, that enable the family and friends of the deceased subject of the inquest to present a picture of who that person was in life.The Chief Coroner’s latest guidance recognises that such materials can humanise the inquest process and provide dignity to the deceased.&nbsp;<strong>What is the guidance?</strong>The Chief Coroner has endorsed the increasingly common practice of coroners hearing inquests to allow pen portrait materials to be adduced, subject to the caveat that it may not be appropriate in all cases.The Guidance states that the materials can assist with addressing one of the key four statutory questions of who the deceased was (the other three questions being when, where and how the deceased died).The Guidance identifies four categories of inquest, setting out the usual circumstances regarding pen portrait materials for each: <ul> <li>Documentary only rule 23 inquests: where there would not ordinarily be attendance, no pen portrait materials would usually be required.</li> <li>Inquests with only family and friends: the informal approach typical in such inquests enables the family and friends of the deceased to tell the coroner something about their loved one.</li> <li>Inquests with interested persons present but no jury: the Guidance suggests that advance notice of a family statement is preferred, but a flexible approach is to be expected from coroners. The coroner hearing the inquest can decide what materials are to be permitted and when they can be adduced.</li> <li>Inquests where a coroner sits with a jury: where photographs relating to the circumstances of a person’s death are to be adduced, a family may want to adduce photographs of the deceased in life. This is permissible, but the type, timing and amount of such materials remains a matter for the coroner. Directions at a Pre-Inquest Review should provide for advance disclosure of these materials. The Guidance recognises that some families will want to read their statements themselves, whilst others might prefer a lawyer, coroner’s officer or other person to do this for them. Importantly, the Guidance states that a coroner should make clear to a jury that what is said or seen in Pen Portrait Materials is not evidence and is not to be taken into account when considering appropriate conclusions.</li> </ul> &nbsp;<strong>Comment</strong>Pen portraits have been widely but inconsistently used in inquests for a long time. In my experience, they humanise what can otherwise be a deeply impersonal process. However, practice has varied between courts and coroners, and guidance aimed at unifying practice is to be welcomed.That said, the Guidance could be read as doing little more than simply documenting the current practice, because a large degree of discretion is still left to the coroner hearing each inquest as to whether to permit such materials. Although the Guidance can be read as encouragement to allow pen portrait materials, it is possible that some coroners may still resist allowing their inclusion on the basis that they already know who died and therefore the materials are not required to answer one of the key questions. Equally, pressure to conclude an inquest in an efficient and timely manner could inadvertently dissuade a busy coroner from permitting such materials.The Guidance will however provide support for families and those representing them - particularly at the Pre-Inquest Review Stage - when arguing that pen portrait materials should be permitted. Moreover, the Guidance could be seen as a step in the direction of a more victim focused, or at least victim acknowledging, approach in the Coroner’s Court.&nbsp;Abigail Telford is a member of Parklane Plowden's specialist <a href="https://www.parklaneplowden.co.uk/expertise/inquests-inquiries">Inquests and Inquiries team</a>. To view Abigail's profile, click <a href="https://www.parklaneplowden.co.uk/barristers/abigail-telford">here</a>.

Parklane Plowden barrister, Ian Pennock, was recently instructed by Eatons Solicitors of Bradford on a personal injury case in a high-speed Motorcycle v Car incident.A car, driven by an uninsured driver, turned in front of a 25-year-old motorcycle driver throwing him 20 feet from his bike and sustaining a multitude of injuries including: <ul> <li>life threatening ruptured aorta requiring immediate and emergency treatment and major blood transfusion,</li> <li>permanent Cauda Equina syndrome (involving loss of sexual function and double incontinence requiring catheterisation and manual evacuation),</li> <li>bowel resection &amp; splenectomy,</li> <li>Bi-lateral fractures for the pelvis and sacrum,</li> <li>spinal fractures involving T1, T2, T5 &amp; T6 and damage to the spinal cord,</li> <li>bi-lateral renal partial infarctions,</li> <li>Multi Ligament left knee injury and left foot drop,</li> <li>fracture of the left wrist and right shin requiring O.R.I.F.,</li> <li>a risk of delayed traumatic epilepsy,</li> <li>continuing chest and lung problems</li> </ul> In addition to medical reports from the following disciplines: <ul> <li>orthopaedic surgeons,</li> <li>spinal surgeon,</li> <li>neurologist,</li> <li>neuropsychologist,</li> <li>psychiatrist,</li> <li>urological surgeon,</li> <li>general physician,</li> <li>occupational therapist,</li> <li>maxillofacial,</li> <li>general surgeon,</li> <li>pain management</li> <li>psychiatry.</li> </ul> Despite the life threatening and life changing injuries the determined Claimant made a ‘miraculous’ recovery returning to work full time in his previous employment which was predominantly desk based and considered quite secure and stable and adapting very well to his situation. The Motor Insurers’ Bureau’s offer of £1.25 million was accepted.

Written by <a href="https://www.parklaneplowden.co.uk/barristers/peter-yates">Peter Yates</a>.This case is a short but useful reminder of the courts’ reluctance to adjourn trials, even in the face of genuine and substantial difficulties facing one party.The claim arose out of the defendant hepatologist’s alleged negligence in 2014. It was said that he had negligently failed to send the claimant’s blood sample for testing which would have led to her being diagnosed with Wilson’s disease. She claimed that, with a diagnosis and treatment, she would have made a full recovery. In the event, she developed liver failure, and required transplants. The claim is valued at over £2 million.Causation is not in issue, and the only issue on liability is breach of duty.The matter is due for trial in May 2021. In October 2020 the defendant suffered a stroke, which was said to have affected his communication skills, and the speed at which he could process information. He is expected to make a good recovery in time.The defendant applied to vacate the trial date, on the basis that it would be difficult for him to give evidence at trial, give instructions, and comment on the expert evidence. The claimant’s position was that the defendant could rely on his witness statement, and that the court could not be confident that the situation would be materially different at a future trial date. The claimant asserted that she would suffer prejudice if the trial were adjourned.The application was refused. It was said that there is a balancing exercise between the prejudice to each party. The allegations dated back to 2014, and memories fade. It was said that the ability of experts to deal with the appropriate clinical standards of the time became more difficult with the passage of time. The issue in dispute turned on expert evidence, and to the extent that the defendant wished to put factual evidence before the court, he could do so in his witness statement. There was, it was said, prejudice to the claimant if there was a further delay. The case would be hanging over her for longer, and there would (if she was successful) be a delay in her receiving her damages.The court dealt also with a separate application by the defendant for an extension of time in which to serve his expert evidence on quantum, the defendant having failed to comply with an earlier deadline. Although Covid-19 had made it difficult for expert examinations to take place, there was a need for lawyers and experts to be flexible in their ways of working. There had been no lack of compliance by the claimant; it was the defendant’s fault that there had been no remote appointment. However, although it is not entirely clear from the summary of the judgment which is currently available, it appears the defendant was granted the extension of time sought.

<p>Written by <a href="https://www.parklaneplowden.co.uk/barristers/gareth-price">Gareth Price</a>.</p> <p> </p> <p>On 19 February 2021 the Supreme Court delivered its judgment in the long running dispute between Uber and its drivers.</p> <p>The central issue to be determined was whether the Tribunal (at a preliminary hearing) was correct to find that the Claimants worked for Uber as ‘workers.’ It held that it was.</p> <p>The secondary issue was, if the Claimants were workers, were they working whenever they were logged into the Uber app (and ready and willing to accept trips) or only when driving passengers to their destinations. The Court held it was the former.</p> <p>The decision has, of course, had a considerable amount of commentary. This short note highlights the key points of the decision and considers its practical implications.   </p> <p><strong>Facts</strong></p> <p>About 40,000 people drive for Uber. Two million people in London alone had the Uber app in 2016.</p> <p>The Claimants worked as private hire vehicle drivers, performing driving services booked through the Uber app.</p> <p>Some interesting facts<a href="#_ftn1">[1]</a> revealed about the Uber system are<a href="#_ftn2">[2]</a> that:</p> <ul> <li>The service charge debited by Uber from any fare is 20%.</li> <li>A driver whose rating drops below 4.4 is subjected to ‘quality intervention’ and, if the rating is not improved, has their account deactivated.</li> <li>The only written agreement between the parties is between Uber BV and the drivers – who are described as ‘Customer.’ </li> </ul> <p>To provide private hire services in London you must have a licence to do so, issued by Transport for London. Uber<a href="#_ftn3">[3]</a> held that licence.</p> <p><strong>Workers</strong></p> <p>The ERA 1996 defines the term ‘worker’ to be:</p> <p style="padding-left: 30px;">an individual who has entered into or works under (or, where the employment has ceased, worked under) -</p> <p style="padding-left: 30px;">(a) a contract of employment, or</p> <p style="padding-left: 30px;">(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;</p> <p style="padding-left: 30px;">and any reference to a worker’s contract shall be construed accordingly.<a href="#_ftn4">[4]</a></p> <p>As explained in <em>Bates van Winkelhof v Clyde &amp; Co LLP</em> [2014] UKSC 32, employment law distinguishes between employees, workers and self-employed. Workers fall into ‘limb (b)’ above. There are three components to satisfy limb (b):</p> <ul> <li>a contract whereby an individual undertakes to perform work or services for the other party;</li> <li>an undertaking to do the work or perform the services personally; and</li> <li>a requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual.</li> </ul> <p><strong>Argument</strong></p> <p>Uber argued that:</p> <ul> <li>a request to book a private hire vehicle made through the Uber app created a contract between passenger and driver, to which no Uber entity is a party;</li> <li>Uber did no more than provide technology services and act as booking agent for drivers; and</li> <li><em>Autoclenz<a href="#_ftn5"><strong>[5]</strong></a></em> held that a Tribunal may disregard the terms of a written agreement only if there is inconsistency between those terms and how the relationship operated in reality – and there was no such inconsistency in this case.</li> </ul> <p><strong>SC Decision</strong></p> <p>Uber<a href="#_ftn6">[6]</a> held the licence with TfL and it did not hold it as agent for the Claimants.  </p> <p>Uber therefore was accepting private hire bookings and, to fulfil its obligations to the passengers, entered into a contract with the driver to carry out the service. If wrong, there was no factual basis (from Tribunal) to find Uber were merely acting as agent (paras 45-56).</p> <p>This finding alone would have meant that the conduct of the parties (Uber London and the drivers) would need to have been determined. Doing that would likely render the drivers employees or subcontractors and (very likely) performing work under a limb (b) contract to perform those services.  </p> <p>The wider argument focused on the question of whether one starts with the contractual agreement when identifying whether an individual is a worker.</p> <p>The SC held that in <em>Autoclenz</em> (as in the case before it) the question was really one of statutory interpretation, not contractual interpretation. What was being determined by a Tribunal was not what had been contractually agreed, but whether the Claimants fell within the statutory definition of ‘worker’.</p> <p>This reflected the very purpose of employment legislation of this kind – to protect employees (and, therefore, certain people categorised as limb (b) workers) against abuse of a dominant/subordinate employer/employee<a href="#_ftn7">[7]</a> dynamic. Citing the judgment of the EAT in <em>Byrne Bros (Formwork) Ltd v. Baird</em> [2002] ICR 667</p> <p style="padding-left: 30px;"><em>“Thus, the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm’s-length and independent position to be treated as being able to look after themselves in the relevant respects.”</em></p> <p>It would therefore, against that background, be inconsistent with the employment legislation to treat the written agreement as the starting point. Further, clauses in such a written agreement that sought to contract out of rights accrued by virtue of the classification would be void.<a href="#_ftn8">[8]</a> Summarising the position in respect of the relevance of the written agreements:</p> <p style="padding-left: 30px;"><em>“This does not mean that the terms of any written agreement should be ignored. The conduct of the parties and other evidence may show that the written terms were in fact understood and agreed to be a record, possibly an exclusive record, of the parties’ rights and obligations towards each other. But there is no legal presumption that a contractual document contains the whole of the parties’ agreement and no absolute rule that terms set out in a contractual document represent the parties’ true agreement just because an individual has signed it. Furthermore, as discussed, any terms which purport to classify the parties’ legal relationship or to exclude or limit statutory protections by preventing the contract from being interpreted as a contract of employment or other worker’s contract are of no effect and must be disregarded.”<a href="#_ftn9">[9]</a></em></p> <p>This led the SC to assess the relationship in the manner commended in <em>Autoclenz</em>, by looking at the reality of it.</p> <p>Factors pointing against a finding of worker status for the Claimants included:</p> <ul> <li>A substantial measure of autonomy and independence;</li> <li>No ‘umbrella’  or ‘overarching’ contract was argued – the contractual arrangements did not bind drivers during periods when they were not logged into the app (although it was accepted that freedom to work or not does not preclude worker status)<a href="#_ftn10">[10]</a></li> </ul> <p>However, the SC identified five factors within the ET’s findings that militated in favour of a finding of worker status:</p> <ul> <li>Remuneration for a journey was fixed by Uber;</li> <li>The contractual terms are dictated by Uber;</li> <li>A driver’s choice about accepting requests (once logged in) is monitored and controlled by Uber;</li> <li>The very technology used (and access to it) imposes control over drivers;</li> <li>Restriction in communication between driver and passenger.</li> </ul> <p>It was primarily on those factors that the ET was entitled to find as it did, that the Claimants were limb (b) workers.</p> <p><em>When did the work begin?</em></p> <p>It then became necessary for the SC to determine during what periods the Claimants were ‘workers’ for the purpose of assessing rights under the Working Time Regulations 1998 (‘the WTR’) and National Minimum Wage Regulations 2015.</p> <p>The test of identifying an ‘irreducible minimum of obligation’ (approved in <em>Carmichael v. National Power plc </em>[1999] 1 WLR 2042) remained the relevant test. In other words, the existence and exercise of a right to refuse work is not critical, provided there is at least an obligation to do some amount of work.</p> <p>With respect to the WTR test, “working time” is defined in regulation 2(1), in relation to a worker, as “any period during which he is working, at his employer’s disposal and carrying out his activity or duties”.</p> <p>A discrete factual difficulty was that many drivers may be logged into apps for several private hire vehicle providers (i.e. Lyft) as well as Uber’s (although there were no findings to this effect at Tribunal). The SC cited Judge Eady QC in the EAT to the effect that Ubers market share meant that ‘in practical terms’ being logged into Uber’s app meant being at Uber’s disposal. As mentioned, there were no findings at the ET to disturb that assessment.</p> <p>On that approach, the SC held the ET was also entitled to find that a workers contract came into existence when 1) the driver logged into the app, 2) was within the authorised territory and 3) was ready and willing to accept trips.<a href="#_ftn11">[11]</a></p> <p><strong>Comment</strong></p> <p><span style="text-decoration: underline;">Does the decision only apply to the ‘gig economy’?</span></p> <p>The opening line of the SC decision remarks on the context of the case - that the work is being provided via a ‘digital platform’. The case of course will be relevant in future disputes for all manner of work that attracts the ‘gig economy’ label, but is certainly not limited to the same.</p> <p>The world of work can be fast-changing and many authorities still cited in worker status disputes (<em>Carmichael</em>, <em>Ready Mixed Concrete, Cotswold Developments</em>) pre-date the existence of apps as a medium through which services are obtained and provided. The rights afforded to certain groups of working people have not been shaped by this working world. Trying to fit them into it will not be easy and may continue to give rise to difficult cases.</p> <p><span style="text-decoration: underline;">So does the decision settle all worker status disputes?</span></p> <p>Probably not.</p> <p>Of course, it may be cited as the leading decision concerning worker status but it, ultimately, restates that each Tribunal must look at the reality of the working relationship to answer the question. The spirit of <em>Autoclenz</em> therefore lives on. That necessarily will give different answers in different factual circumstances. Those relationships may well throw up issues not expressly addressed in Uber, such as the genuineness (and relevance) of substitution clauses (see <em>IWU v CAC / Deliveroo</em> [2018] EWHC 3342).</p> <p>The SC decision does not, of course, determine compensation owed to the Claimants. In particular, the decision that determining working time was by reference to logging into the app was expressly not answered ‘in the abstract’. Findings of fact may need to be mad for any other potential Claimants so as to determine that question.</p> <p>It probably does not even end litigation between Uber and its drivers.</p> <p>Uber has already released a statement to its current drivers indicating that, due to changes in its operations, the ‘judgement [sic] does not apply to drivers who earn on the app today.’</p> <p><span style="text-decoration: underline;">Has the decision added any gloss to Autoclenz?</span></p> <p>The SC has ended any argument from employers that Tribunals should begin<a href="#_ftn12">[12]</a> by looking at the written terms. It has also ended any argument that the ‘reality’ approach commended in <em>Autoclenz</em> is only permissible if it is inconsistent with the written terms.</p> <p>The decision certainly puts the concept of subordination front and centre as a touchstone for assessment of worker status (albeit not rising to the level of ‘a freestanding and universal characteristic of being a worker’ as stated in <em>Bates van Winkelhof</em>.)</p> <p><span style="text-decoration: underline;">Last…</span></p> <p>The Tribunal that decided this issue in 2016 had its reasoning withstand scrutiny at three levels of appeal. No small feat and to be applauded.</p> <p> </p> <p> </p> <p><a href="#_ftnref1">[1]</a> As found by the Tribunal</p> <p><a href="#_ftnref2">[2]</a> Correct at time of judgment in 2016. Importantly, Uber contends that a number of these facts are no longer the case.</p> <p><a href="#_ftnref3">[3]</a> Specifically, Uber London Ltd, a UK subsidiary of Uber BV, the Dutch company.</p> <p><a href="#_ftnref4">[4]</a> S.230(3).</p> <p><a href="#_ftnref5">[5]</a> Autoclenz Ltd v Belcher [2011] UKSC 41</p> <p><a href="#_ftnref6">[6]</a> As above, Uber London Ltd</p> <p><a href="#_ftnref7">[7]</a> In the general (non-classification) sense</p> <p><a href="#_ftnref8">[8]</a> See e.g. s.203 ERA 1996</p> <p><a href="#_ftnref9">[9]</a> Para 85</p> <p><a href="#_ftnref10">[10]</a> See James v. Redcats (Brands) Ltd [2007] ICR 1006</p> <p><a href="#_ftnref11">[11]</a> Although the SC considered the final requirement to not be necessary to a finding of contractual status, albeit was relevant to determining if work was being done.</p> <p><a href="#_ftnref12">[12]</a> As above, the SC were equally clear that the written contract is not irrelevant to the assessment</p><!-- wp:paragraph --> <p>View Gareth Price's profile on this <a href="https://www.parklaneplowden.co.uk/our-barristers/gareth-price/" target="_blank" rel="noreferrer noopener">link</a>.</p> <!-- /wp:paragraph -->