Credit Management July and August 2020

HR MATTERS
Vicarious Living
Indiscreet remarks, holiday entitlements and
the concept of ‘vicarious liability’.
AUTHOR – Gareth Edwards
BE careful what is said
– even hypothetically.
In NH v Associazione
Avvocatura per i diritti
LGBTI, the Court of Justice
of the European Union
(CJEU) considered whether homophobic
remarks made by a senior Italian lawyer
(NH) suggesting that he would not like
to work with or recruit homosexual
people in his law firm could amount to
unlawful discrimination. Having heard
the comments, an association of lawyers
which defends the LGBTI community
successfully brought court proceedings
against NH, alleging discrimination
because of sexual orientation and
claiming damages.
NH appealed the finding to the
Italian Supreme Court, which referred
the case to the CJEU. It noted that the
EU Equal Treatment Directive prohibits
discrimination in relation to the
conditions for access to employment,
including recruitment conditions. The
CJEU held that ‘conditions for access to
employment’ covers statements made
during programmes – even when there is
no recruitment process open or planned,
provided there is a non-hypothetical
link between the statements and the
employer’s recruitment policy.
The CJEU held that it was for the
Italian Supreme Court to assess the
link between NH's statements and his
law firm’s recruitment policy but that a
number of factors would need to be taken
into account – the status of the person
making the statements; the capacity
in which the statements were made
(influence over recruitment policy); and
the nature of the statements.
Liability for the acts of independent contractors
IN recent years the concept of ‘vicarious
liability’ – liability for the negligent acts
of another – has seen employers being
held liable for the actions of those in
positions ‘akin to employment’ as well as
those who are directly employed.
However, Barclays Bank v Various
Claimants, offered a different view.
Here, the Supreme Court was asked
to determine whether a self-employed
third-party contractor could be in a
position ‘akin to employment’ making
the employer liable for their actions.
As part of its recruitment processes,
between 1968 and 1984, Barclays engaged
a medical practitioner to carry out
medical examinations on prospective
employees. The bank scheduled the
appointments and told the applicants
who attended unaccompanied.
Examinations were carried out in
the doctor’s home and he was paid a fee
to prepare a report on each applicant.
There was no retainer and the doctor
THE law around calculating holiday pay
for workers, without fixed hours or fixed
rates of pay changed on 6 April 2020.
In essence, the holiday pay reference
period has increased from 12 to 52 weeks.
Employers must now use 52 weeks' worth
of pay data to calculate holiday pay for
workers without fixed hours or pay. A
week where the worker receives no pay
cannot be counted towards the 52 weeks
of data to be used. Such weeks should
be discounted and instead an earlier
week should be counted. Employers can
use up to 104 weeks of data as reference
periods in gathering the 52 weeks of data.
Where 52 weeks' worth of pay data is
not available, the employer should use
as many weeks of pay data as they have
within the preceding 104 weeks.
A week starts on a Sunday and ends on
a Saturday. If a worker takes annual leave
before they have worked a full week,
was not under any obligation to accept
bookings from the bank. The doctor had
other clients and patients.
Sometime after the doctor had died,
a group action was brought against the
bank on the basis that it was vicariously
liable for sexual assaults allegedly
carried out by the doctor during the
medical examinations. In 2017, a judge
ruled that the bank was vicariously liable
for any proven assaults. On the basis that
the doctor’s wrongdoing occurred as a
result of activity undertaken by him on
behalf of the bank, under its control and
for its benefit, and as an integral part of
its business activity, the judge concluded
that the relationship between the parties
was sufficiently akin to employment.
The Court of Appeal agreed, but the
case moved to the Supreme Court which
overturned the decision. It held that
the self-employed medical practitioner
in this case was in business on his own
account.
Holiday pay for employees without fixed hours
the employer should pay the worker an
amount which fairly represents their pay
for the length of time they are on leave.
Paid overtime (contractual or
voluntary but sufficiently regular)
worked during the reference period must
also be included in the calculation.
Gareth Edwards is a partner in the
employment team at
VWV. gedwards@vwv.co.uk
Advancing the credit profession / www.cicm.com / July & August 2020 / PAGE 51