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Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB)

<!-- wp:paragraph --> <p>Pupil barrister Bharat Jangra examines the outcome of Thorley v Sandwell &amp; West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB) whereby the case was dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual Background</strong><br><br>The Claimant suffered a stroke as a result of his anti-coagulation medication (Warfarin) being stopped whilst undergoing an angiogram in April 2005. Mr Justice Soole’s judgment considered: breach of duty; the Wisniewski principles regarding adverse inferences; causation and material contribution.<br><br>The Claimant advanced two breach of duty arguments:<br><br>• Prior to the angiogram, the Claimant was told to not take any anti-coagulation medication for four days, contrary to the ‘guidance’ document; and<br>• Following the angiogram, the Claimant should have been advised to re-start his Warfarin on the evening of the angiogram.<br><br>The Defendant submitted that the guidance document was not strictly applicable to angiograms and so there was no breach of duty. In response to the second claim, the Defendant submitted that this course of action was not contrary to Bolam or Bolitho and that there was a reasonable body of competent practitioners who would have delayed re-starting Warfarin until the day after the procedure rather than the same day.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Breach of Duty, the Guidance Document, Wisniewski Principles and Adverse Inferences</strong><br><br>The guidance document was titled ‘Anticoagulation and Surgery (Sandwell)’ and had not initially been disclosed by the Defendant as it was their position that it was not directly applicable. The Defendant did not bring any factual evidence regarding this document, either from those who were responsible for drafting the document or from those who had clinical responsibility for Mr Thorley.<br><br>During the trial, the Claimant’s expert advanced the position that the guidance was applicable and should have been followed in this case reducing the period prior to the angiogram without anti-coagulation medication to three days rather than four. He also also accepted that it was only a guideline and could be departed from on clinical grounds [para. 46].<br><br>In contrast, the Defendant’s expert stated it was not applicable as angiography was not a surgical procedure and therefore not covered within the scope of the document. Further, as it was not a protocol or policy, and absence a protocol relating specifically to angiography, it was not reasonable to apply guidance relating to surgery to angiography [para. 43]. The Judge also accepted the position that in 2005 guidance documents were much less common.<br><br>To support their breach of duty arguments, the Claimant sought an adverse inference due to the failure by the Defendant to call any evidence regarding the document, in line with the principles from Wisniewski v Central Manchester Health Authority [1998] PIQR P324, being:<br><br>“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.<br><br>(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.<br><br>(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.<br><br>(4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”<br><br>Soole J did not seek to apply these rules strictly, in reliance on the Supreme Court judgment in the case of Efobi v. Royal Mail Group Ltd [2021] UKSC 33 where Lord Leggatt JSC (with whom the other JSC agreed) observed at [41]:<br><br>‘…Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so…'<br><br>Whilst this was an employment case, Soole J interpreted the above to have the widest possible application.<br><br>Soole J agreed with the Defendant expert’s interpretation regarding the guideline document, in that it did not apply to angiography and it was contrary to the ample material cited to the court advocating a four or five day period without anticoagulation medication. There were no adverse inferences to be drawn by the Court from the Defendant’s failure to call any factual evidence on this issue. Therefore, there was no breach of duty in failing to follow the guideline [paras. 57 - 67].<br><br>The Court went on to discuss that the expert evidence provided no basis to conclude that a three day period was better than a four or five day period of omission without Warfarin. Consequently, regardless of the guideline, there was no breach of duty in the treatment to Mr Thorley [paras. 75 – 77].<br><br>Regarding the second breach of duty claimed around the delay in resuming warfarin, Soole J did acknowledge and accept that some practitioners, with supporting independent publications, would have restarted Warfarin later on the day of the angiogram.<br><br>However, Soole J preferred the Defendant’s expert evidence, in that this position had to be read in the context of the assessment of the Claimant and risk of post-operative haemorrhage. There was a risk of bleeding following the angiogram, which may have been delayed or would not have been immediately apparent after the angiogram, especially considering that the Claimant was obese. The delay in resuming anti-coagulation medicine the day after the angiogram carried a risk, but provided extra safety to the Claimant should a late bleed have occurred [para. 79]. This approach was supported by a reasonable body of competent practitioners, including the Defendant expert himself. Therefore, there was no breach of duty in not resuming Warfarin in the evening on the day of the angiogram.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Causation and Material Contribution</strong><br><br>The Claimant’s causation case was brought on two grounds: ‘but for’ causation and material contribution.<br>Regarding ‘but for’ causation, Soole J found difficulty in accepting the Claimant’s expert evidence in relation to the applicability of the study he produced to the Claimant’s position, or the points raised regarding the relevance of the study relied on by the Defendant’s expert. Instead, he preferred the evidence of the Defendant’s expert and the way in which he extrapolated the evidence he brought and applied it to the Claimant’s condition. On that basis, he did not find that there was any ‘but for’ causation and that the Claimant would have suffered a stroke in any event.<br>Soole J undertook a comprehensive review of the case law regarding material contribution, and in agreement with the Court of Appeal in both Ministry of Defence v AB [2010] EWCA Civ 1317 and Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86, material contribution is not an issue that can be raised when there is one defendant and an indivisible injury.<br><br>The claim was therefore dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusions</strong><br><br>The Court will not restrict themselves to a formulaic test when considering the Wisniewski principles, and in line with Efobi it will take a holistic and common sense approach to the evidence. Further, material contribution cannot be raised as an issue where there is an indivisible injury and one defendant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Author</strong><br><br>Bharat Jangra is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers offer specialist pupillages based within either our Civil &amp; Employment teams, our Family Team or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Interested in applying for Pupillage at Parklane Plowden?</strong><br><br>If you are interested in applying for Pupillage at Parklane Plowden join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.<br><br>Please click <strong><em><a href="https://www.parklaneplowden.co.uk/future">here</a></em></strong> to read more.</p> <!-- /wp:paragraph -->

Parklane Plowden named Barristers’ Chambers of the Year at The Personal Injury Awards 2021

<!-- wp:paragraph --> <p>Parklane Plowden Chambers is celebrating after being named barristers’ chambers of the year at the Personal Injury Awards 2021. This latest award builds upon recent success at the 2021 Yorkshire Legal Awards, where Parklane Plowden was also named chambers of the year.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Held at New Dock Hall in Leeds, the prestigious awards evening saw hundreds of personal injury-focused professionals gather to celebrate this vital practice area.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Practice Director for the personal injury and clinical negligence team, John Hammond, was presented with the award by compere for the evening, TV personality and comedian, Patrick Monahan.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Commenting on why Parklane Plowden won the award, the judges said: “Parklane Plowden received unanimous praise from the judging panel for a full service offering that is consistently delivered to a high standard of professionalism.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Chambers currently has a 65-strong personal injury and clinical negligence team, with an award-winning clerking unit headed by John Hammond.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>John said: “Winning this award is great recognition of the fantastic work done by our expert personal injury and clinical negligence team at Parklane Plowden. We continue to advise our clients on a wide range of claims, and are committed to building upon our reputation as the leading barristers’ chambers for personal injury and clinical negligence cases on the Northern and North-Eastern Circuits.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Head of Team, Steven Turner, was similarly delighted. He said: “I see this as a reward for all the hard work the barristers, clerks and support staff have put in. We have taken active steps over the past few years to increase both team size and the quality of our offering to clients. We have come through Covid with improved and ever-more efficient systems in place and I can’t wait for us to get back to our newly refurbished Leeds chambers building in early 2022. I have been in chambers for over 25 years and I marvel at the talent we now have. It is extremely gratifying when our across-the-board quality and capabilities are publicly recognised in this way.”</p> <!-- /wp:paragraph -->

Interested in applying for Pupillage at Parklane Plowden?

<!-- wp:paragraph --> <p>We offer specialist pupillages based within either our Civil &amp; Employment teams, our Family Team or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.<br><br>We believe that specialising within pupillage allows pupils to quickly develop the necessary skills to immediately start practice within one of our highly rated, expert teams and forge strong relationships with solicitors from the outset.<br><br>We are committed to equal opportunities for all no matter their background. We consistently promote and aim to improve diversity at the Bar and within PLP itself.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>We particularly encourage applications from those in underrepresented groups and those with disabilities.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Please click the open evening of your choice to secure your place.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&amp;d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x34310534F2D91FB1|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x34310534F2D91FB1|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|" target="_blank" rel="noreferrer noopener">Family Pupillage Open Evening</a></strong><a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&amp;d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x34310534F2D91FB1|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x34310534F2D91FB1|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|" target="_blank" rel="noreferrer noopener">&nbsp;</a>– Monday 13th December 2021</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&amp;d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x53B3D927EBA0463D|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x53B3D927EBA0463D|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|" target="_blank" rel="noreferrer noopener"><strong>Civil, Commercial and Chancery Pupillage Open Evening</strong></a>&nbsp;– Wednesday 15th December 2021</p> <!-- /wp:paragraph -->

Campbell (By His Litigation Friend) v Advantage Insurance Company Limited

<!-- wp:paragraph --> <p>Pupil barrister Sophie Watson examines the outcome of Campbell (by his litigation friend) v Advantage Insurance Company Limited whereby the Court of Appeal upholds that a Claimant cannot rely on his own intoxication when accepting a lift from a drunk driver to avoid a finding of contributory negligence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant and his friends had been drinking in a nightclub. The Claimant became very drunk and was assisted into the front passenger seat of his friend’s car where he fell asleep. After leaving the Claimant in the vehicle, the Claimant’s friends went back to the nightclub and continued drinking.&nbsp; When they returned to the car, it would not start and one of them went to borrow jump leads.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The other friend managed to start the vehicle and then began driving with the Claimant as a rear seat passenger, having moved position from the front passenger seat. A collision occurred with an oncoming lorry on the wrong side of the road.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s head collided with the driver’s seat, and he suffered a catastrophic brain injury. The driver was killed, and the other friend provided a witness statement, but killed himself prior to the trial.&nbsp; Therefore, there was limited evidence in respect of the events of the night.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First instance Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge made reference to the Mental Capacity Act (MCA) 2005 and stated that section 1(2) sets out ‘<em>a person must be assumed to have capacity unless it is established that he lacks capacity.’&nbsp;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge found that the Claimant must have been aware of what was happening when he moved from the front passenger seat to the rear seat. He concluded that given the Claimant’s size/height it would have been highly improbable that the driver moved the Claimant without the Claimant assisting. The Judge found this was consistent with the Claimant being aware that the driver was intoxicated and therefore, consenting to remaining in the car as it was driven away.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge applied an objective test of the ‘reasonable man’ when deciding whether, by virtue of being drunk, the Claimant was contributorily negligent. He made a finding of contributory negligence of 20% against the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Appeal Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant appealed this finding of contributory negligence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal identified 4 key issues:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Whether the Judge had wrongly applied the test of capacity under MCA 2005 and reversed the burden of proof for contributory negligence.</li><li>Whether the Judge’s findings were properly made.</li><li>Whether the Judge wrongly applied a test of the objective reasonable, competent and prudent passenger; and</li><li>Whether the judge’s assessment of 20% reduction in damages should be reduced.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Firstly, in respect of capacity, the Court of Appeal considered that the Judge at First Instance had correctly applied the test under MCA 2005. It was held that the Judge did not reverse the burden of proof.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Secondly, the Court of Appeal found there was no evidence that any justiciable errors were made that would entitle interference with the findings of fact. The Court of Appeal was satisfied that, on the basis of the limited evidence, the Judge had made proper findings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main issue determined was the application of the objective test.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s Counsel had made reference to a number of Australian authorities. In <em>McPherson v Whitfield </em>[1996] 1 Qd. 474it was concluded that where the Claimant was lacking relevant conscious awareness, the Claimant should not be held responsible for failing to take reasonable care of his own safety. The Court of Appeal rejected this approach.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal considered the case of <em>Owen v Brimell </em>[1977] QB 859which sets out twoscenarios in which contributory negligence could be found, namely: if the passenger accepted the lift knowing the driver was intoxicated or the passenger had known that he would be given a lift and then drunk to excess so that he could not make an assessment of the driver’s ability to drive<em>. </em>The Court of Appeal acknowledged that there were only two situations identified but found that this did not restrict contributory negligence to only these distinct situations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In dismissing the appeal, the Court of Appeal found that the Judge at First Instance had rightly concluded that the Claimant should be assessed to the standards of a reasonable, prudent and competent adult.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is notable that in agreement, Lord Justice Underhill considered an example of a person who was unconscious would be in a state where they were incapable of making a decision and could not consent. Therefore, in this scenario they would not be contributorily negligent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case re-affirms the objective test to be applied. It is clear that the question of voluntary and involuntary conduct will turn on the facts and the assessment of the evidence by the trial judge.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sophie Watson is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers offer specialist pupillages based within either our Civil &amp; Employment teams, our Family Team or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If you are interested in applying for Pupillage at Parklane Plowden join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Please click <a href="https://www.parklaneplowden.co.uk/future">here</a> to read more.</p> <!-- /wp:paragraph -->

Worker status and the obligation of personal performance 🗓

<!-- wp:paragraph --> <p><strong><em>In this article, Parklane Plowden Barrister, Roger Quickfall, considers the approach to determining when a limited right of substitution is consistent with the obligation of personal performance following the recent guidance of the Court of Appeal in </em>Stuart Delivery v Augustine<em>.</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Introduction</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 19/10/21, the Court of Appeal (“CA”) delivered its latest decision on worker status: <em>Stuart Delivery Ltd v Augustine</em> [2021] EWCA Civ 1514 (“<em>Augustine</em>”).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On this occasion, the CA was dealing with the obligation of personal performance when there is a fettered right of substitution.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The issue on appeal was whether an employment tribunal (“ET”) was entitled to find that a self-employed courier (“C”) delivering goods by moped for Stuart Delivery Ltd (“R”) was a ‘worker’ for the purposes of s. 230(3)(b) of the Employment Rights Act 1996 (“ERA”).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The facts</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>R had developed a technology platform connecting couriers with retailers via an app.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers who entered into arrangements with R could accept individual delivery jobs and be paid a fixed fee for that job by reference to the distance travelled and the mode of transport.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers could also sign up for one or more time slots via the app.&nbsp; The slots covered the zones with the highest concentration of users at the times of projected highest demand.&nbsp; Couriers were encouraged to sign up for these slots and 93% of couriers worked on these slots.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once signed up for a slot, couriers committed to be in a particular zone for 90% of the time of the slot, not logging off for more than 6 minutes per slot and not refusing more than one delivery job during a slot.&nbsp; If they satisfied these requirements, they were guaranteed a minimum £9 an hour for each slot (regardless of whether they undertook any deliveries).&nbsp; If they did not satisfy these requirements, they would not receive the minimum payment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Couriers were also paid delivery rewards if they achieved a certain number of deliveries in a week, but they would not qualify for the reward if they failed to take up two or more slots in a week.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was no written substitution clause.&nbsp; However, if a courier did not wish to work a slot he had accepted, he could notify other couriers on R’s app who could opt, if they chose, to fill the unwanted slot.&nbsp; C did not know which courier would be taking up the slot and he could not put forward any given individual.&nbsp; If one of the couriers did not take up the slot, C would have to do it or face penalties for missing the slot.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The right of substitution was conditional upon another courier on R’s app agreeing to take up C’s slot.&nbsp; The other courier had to have the same mode of transport and was subject to the same requirements as C of having to stay in the area for 90% of the time, not logging off for more than 6 minutes per slot and not refusing more than one delivery job per slot, to avoid losing the guaranteed payment and suffering the other consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA agreed with the ET and the EAT that this was not a sufficient right of substitution to remove the obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The law</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As employment lawyers are aware, the definition of a worker in s. 230(3)(b) ERA provides, <em>inter alia</em>, that the individual “<strong><em>undertakes to do or perform personally any work or services for another party to the contract …</em></strong>”.&nbsp; This is known as the obligation of personal performance.&nbsp; Anyone seeking to establish themselves as a worker must establish that they are subject to the obligation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If the individual must perform the work themselves, there is no difficulty: there is an obligation of personal performance.&nbsp; If the individual can send whoever they wish to carry out their work, i.e. the right of substitution is unfettered, there is also no difficulty: there is no obligation of personal performance.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The difficulty arises where the right of substitution is fettered or conditional, i.e. limited or occasional.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Whether a conditional right of substitution is consistent with personal performance&nbsp;</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As was held by the CA in <em>Pimlico Plumbers v Smith</em> [2017] EWCA Civ 51, [2017] ICR 657 (“<em>Pimlico Plumbers</em>”) (§84), whether a conditional right of substitution is consistent with personal performance depends on the conditionality; in particular, the nature and degree of any fetter on the right of substitution.&nbsp; In other words: the extent to which the right is limited or occasional.&nbsp; In the same paragraph, the CA gave three examples:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li><em>a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. </em><em></em></li><li><em>a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. </em><em></em></li><li><em>a right to substitute only with the consent of [the employer] who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.</em><em></em></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>On appeal in <em>Augustine</em>, R argued that the ET wrongly found that C’s right of substitution was consistent with (iii) above when it should have found that it was consistent with (ii).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The above examples were stated by the Master of the Rolls and approved of by the Supreme Court.&nbsp; There has therefore been a tendency for practitioners to regard them as categories into which the facts of a case can be shoehorned to determine whether there is an obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the CA in <em>Augustine</em>, held that this was the wrong approach because it was unreal to attempt to shoehorn the facts of a case into one of the examples to see whether a right of substitution was consistent with the obligation of personal performance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA held that, to treat the examples as categories, addresses the wrong issue.&nbsp; The issue is not whether the case can be fitted into one of the examples; it is whether there is an obligation of personal performance (§38).&nbsp; Where the right of substitution is conditional, the issue is whether the nature and degree of any fetter on the right or ability to appoint a substitute is inconsistent with any obligation of personal performance (§55).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>An important factor is the dominant purpose of the work arrangement when there is a limited right of substitution.&nbsp; Is the employer only concerned that the work is done and uninterested in who does it? Or do they want the individual they have contracted to do it?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As the SC explained in <em>Pimlico Plumbers</em> <em>v Smith</em> [2018] UKSC 29, [2018] ICR 1511, at §32, where there is a right of substitution, it may be helpful to assess its significance by reference to whether the dominant feature of the contract remains personal performance on the part of the person contracted to carry out the work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Pimlico Plumbers</em> the SC proceeded on the basis (without deciding) that the claimant had the right to appoint another Pimlico plumber to do particular work where the claimant had subsequently been offered a more lucrative job.&nbsp; The SC held that this was a significant limitation on the right of substitution and was the converse of the situation in which the employer was uninterested in the identity of the substitute, provided only that the work was done.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Augustine</em>, the system set up by R was intended to ensure that C carried out the work and, in particular, that he turned up for the slots for which he had signed up and did the delivery work during those slots.&nbsp; That was necessary for R’s business model.&nbsp; The limited right or ability to notify other couriers via the app that he wished to release his slot for take up by others was insufficient to remove from him the obligation of personal performance.&nbsp; This was not a situation in which R was uninterested in who performed the work.&nbsp; R wanted to ensure that the courier who took the slot was subject to the same constraints as C to ensure that there were sufficiently reliable couriers available in hot zones at peak times.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA observed that there is no rule that a right or ability to substitute only from R’s pool of operatives is necessarily consistent with personal performance.&nbsp; But the CA acknowledged that the courts have recognised that this is a conclusion that employment tribunals can reasonably reach in broadly similar circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, the CA observed that, in considering whether there is an obligation of personal performance, it may not be necessary to determine whether the substitution arrangements are contractual or merely a practice permitted by R.&nbsp; It was observed that, following <em>Uber v Aslam</em> [2021] UKSC 5, [2021] ICR 657 (“<em>Uber</em>”), the question may be whether, looking at the contractual terms and the way the arrangements operated in practice, there was an obligation of personal performance given the extent and nature of any practice permitting substitution.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Uber</em> it was held that the contract is not the starting point in determining employment / worker status because employment rights are not contractual but statutory.&nbsp; Whether an individual has statutory rights is therefore a matter of ‘statutory’ rather than ‘contractual’ interpretation.&nbsp; It is therefore necessary to have the purpose of the relevant statutory provisions in mind, i.e. the protection of the vulnerable / those in a position of dependency on the employer, when determining whether an individual has particular statutory rights.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Conclusions</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When considering whether an individual is a ‘worker’ where there is a limited ability to appoint a substitute, the issue is whether the nature and degree of any limit is consistent with any obligation of personal performance.&nbsp;&nbsp; In addressing this issue, it is necessary to consider the extent to which the employer is interested in who carries out the work.&nbsp; Trying to shoehorn the facts into one of the so-called <em>Pimlico</em> examples will not be conclusive.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Roger Quickfall</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Barrister at Parklane Plowden</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>November 2021</p> <!-- /wp:paragraph -->

REPLAY: Age Discrimination Webinar

<!-- wp:html --> <iframe width="560" height="315" src="https://www.youtube.com/embed/2koRIqHgKx8" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe> <!-- /wp:html --> <!-- wp:paragraph --> <p><br></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On Tuesday Parklane Plowden employment specialists, <a href="https://lex.parklaneplowden.co.uk/temp/iHtmlEditorPreviews/202110271557817430.html?noCache=4972333">Andrew Sugarman</a> and <a href="https://lex.parklaneplowden.co.uk/temp/iHtmlEditorPreviews/202110271557817430.html?noCache=4972333">Gareth Price</a> delivered a webinar in our 'Law with Lunch' series titled 'Age Discrimination &amp; Compulsory Retirement'.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following the EATs decision in Ewart/Pitcher v Oxford University, in which Andrew Sugarman acted successfully for Prof. Ewart, Andrew and Gareth Price explore the key issues facing employers when their employees approach retirement age. The talk considered the implications of the EATs decision to dismiss both appeals, that reached different decisions regarding the same retirement policy, when compulsory retirement policies are permitted and the burden on employers to justify direct age discrimination.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To request the accompanying handout notes for this session please email <a href="mailto:tom.walters@parklaneplowden.co.uk">tom.walters@parklaneplowden.co.uk</a></p> <!-- /wp:paragraph -->

Not to be missed &#8211; Upcoming Webinars

<!-- wp:paragraph --> <p>The next two webinars in our ‘Law with Lunch’ series of bitesize, lunchtime talks covering the legal issues of the moment are not to be missed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From the latest procedural tips, these sessions are ideal for busy practitioners who want to grab some lunch whilst at the same time ensuring their legal knowledge is bang up to date. <br></p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><strong>Tuesday 16<sup>th</sup> November, 1pm, Zoom webinar</strong><br>Barristers and clinical negligence specialists, <a href="https://www.parklaneplowden.co.uk/our-barristers/gemma-lieberman/" target="_blank" rel="noreferrer noopener">Gemma Lieberman</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener">Anna Datta</a><br>will provide their insight on <em>Limitation and capacity: Aderounmu v Colvin.</em><br></p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><strong>Tuesday 30<sup>th</sup> November, 1pm, Zoom webinar</strong><br>Barristers and clinical negligence specialists, <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/" target="_blank" rel="noreferrer noopener">Megan Crowther</a><br>will provide their insight on a wealth of <em>case law updates</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Places on both webinars are FREE. To secure your place email <a href="mailto:tom.walters@parklaneplowden.co.uk">tom.walters@parklaneplowden.co.uk</a></p> <!-- /wp:paragraph -->