7 - TORT - Employers' Flashcards
What factors are considered when identifying an employment relationship?
a. Remuneration & mutuality of obligations: employee being paid & employer providing work that the employee must do (0 hour contracts unlikely to be held as employment)
b. Control: the more control, the likelier an employee relationship
c. All other contractual factors consistent with employment e.g. tools & equipment provided; tax/PAYE treatment; benefits
What factors are considered for doubtful cases, to determine a relationship akin to employment?
Must be sufficiently analogous to employment to make it fair, just & reasonable
- Employer more likely to be able to compensate C
- Tort committed due to activity undertaken by tortfeasor on their behalf
- Tortfeasor under employer’s control
- Tortfeasor activity part of employer’s business activity
What are cases for relationship akin to employment?
- Barclays insisted staff see doctor who abused someone - doctor not akin to employment 👨⚕️🍆
- prisoner working in catering dept of prison was akin to employment 👨🍳
What is employers’ primary liability?
- Where an employee sues their employer for breaching DoC owed to employee
- duty is personal & non-delegable
What is the standard of care for EPL?
To take reasonable care, taking into account an employee’s
personal characteristics
What defences apply for EPL?
Normal ones (although consent is rare) - contributory negligence most common
Where an employer lends an employee, who is vicarious liable?
Still the original employer (although both employers could be)
What test is applied to show the tort was committed in course of employment? (for vicarious liability)
- What functions entrusted to employee?
- Was there sufficient connection between position in which they were employed & the wrongful conduct to make it fair, just & reasonable to hold employer liable?
Lunch breaks reasonably expected; are they going about employer’s business at time?
If act unauthorised/specifically prohibited, seen as ‘frolic of their own’
What’s a case for sufficient connection with work?
- Morrisons held liable for assault and battery by staff member who followed customer out of store - sufficient connection. 🛒🥊
- Cyclist collided with staff member crossing street from one office to another wearing company uniform 40 mins after shift had ended - no connection. 🚶♂️🚴♂️💥🕠
What are the employers’ obligations?
- safe and competent employees 🤡
- Safe and proper plat and equipment ⚙️
- safe place of work 🏭
- Safe systems of work 📋
What is the case for competent employees?
Practical joker told off for years - liable
🤡
What is the case for safe plant and equipment?
- boots for splashes of molten metal (enough at the time) 🥾🔥
- busses lack of protective screens OK because they reflected light and route was low risk 🚎💡
What is the case for safe place of work?
- reasonable steps required to make sure window cleaners had a safe place of work 🪟🫧
What is the case for safe system of work?
- window cleaners climbing on windowsills and had no training 🪟🫧🤡📋
- metal worker provided with goggles but employer must encourage and insist on wearing them 🥽😉
- foreman discouraged use of barrier cream 🧴❌
What is the case for whether an employer is liable for an employee
Milk float driver ignored comapny orders and allowed a boy to help him injuring the boy. Employer still liable as driver was engaged on company business.
🍼👶👶👷
