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Employee, or not an Employee: that is the question

EL v Children’s Society [2012] EWHC 365 (QB)

On 24th February 2012 the decision in EL v Children’s Society was handed down.

Whilst it is a first instance decision, the judgment of Haddon Cave J is a useful and interesting read in regard to whether or not acts are carried out in the discharge of employment obligations.

The Claimant claimed damages for the sexual abuse he had suffered in childhood whilst living in a children’s home run by the Defendant charity. The Claimant had been taken into the Defendant Charity's care and had lived at the home for various periods between 1949 and 1959. In 2008, he contacted the Defendant complaining that, between 1956 and 1959, he had been sexually assaulted by the House Parents' son.

The Claimant contended that the House Parents had entrusted the running of the home to their Son when they were out, and also entrusted specific tasks to him. He submitted that the House Parent’s son had therefore (i) been used to discharge the Defendant's obligations towards the children in the home, (ii) that the Son’s abuse was closely connected with his role at the home and (iii) that, notwithstanding the absence of a formal employment relationship, those circumstances gave rise to vicarious liability on the Defendant's part for the Son's torts.

The Claimant failed on the facts in his claim against the Defendant charity. On the evidence, the House Parents’ Son had never been left in charge of the home, whether formally or informally, and he had never been engaged by them to act as their relief at the home at any stage or on any occasion. The Claimant accepted that on each of the occasions when abuse was committed the House Parents were also present in the home.

The Son was at the home only because he happened to be the House Parents' son. In so far as he had used his "position" to commit acts of abuse, it was his status as the House Parents' son which gave him an "air of authority" and nothing else.


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