Employer's Primary Liability and Vicarious Liability

Question 1

What is employer’s primary liability?

Answer 1

The law of negligence, applied to the relationship between the employer and employee.

Question 2

What is vicarious liability?

Answer 2

When one party is held accountable for the torts of another.

Question 3

What three parties are involved in vicarious liability?

Answer 3

The injured party
The employee that caused the harm by committing a tort
The employer who may be vicariously liable for the harm caused by its employee.

Question 4

How must employers provide practical protection to employees?

Answer 4

Via compulsory insurance

Question 5

What are two key features of employer’s primary duty of care?

Answer 5

It is personal and non-delegable

Question 6

What does an employer’s duty of care entail?

Answer 6

Within the overall duty to take a reasonable precaution to ensure an employee’s safety while at work is:

• Safe and competent employees
• Safe and proper plant and equipment
• Safe place of work / premises including safe access and way out
• Safe systems of work, with adequate supervision and instruction

Question 7

Give examples of a breach of the duty to select and employ competent staff

Answer 7

Employing someone known to play practical jokes on employees

An incompetent person employed / required to do a job they are not capable of doing - breach

Question 8

Give examples of a breach of the duty to provide safe machinery, plant and equipment.

Answer 8

Not a breach to have provided protective equipment to protect against splashes of molten metal

Not a breach to not put defensive screens for a bus driver as in the area he drove in the risk of assault was very low.

Question 9

How does the court approach whether an employer has provided a safe place of work?

Answer 9

This also extends to 3rd party premises - but, what is expected of an employer in 3rd party premises would be less than expected in relation to the employer’s own premises.

Court will consider:
- Place of work
- Nature of building
- Experience of employee
- Nature of work
- Degree of control exercised
- Employer’s knowledge of premises

Question 10

What does the duty to provide a safe system of work entail?

Answer 10

• Physical layout of the job
• Setting of the stage
• Sequence in which the work is to be carried out
• The provision of warnings
• Notices
• Training
• Supervision
• Issues of special instruction

this is the widest facet of the employer’s duty

Must not only devise this system but also ensure that is it complied with. There is also a duty to encourage / insist on the wearing of the goggles.

Persuasion vs insistence depends on the nature and degree or risk of serious harm

Question 11

What happens if employees object / refuse to use safety equipment?

Answer 11

Employer may not be negligent for failing to enforce the use of that safety equipment

Question 12

Give examples of case law connected to ‘barrier cream’ for dermatitis at work.

Answer 12

Breach: Employer failed to keep cream on premises and foreman did not believe in its use

Not breach: Cream available; foreman had made it known to claimant and given instructions on when to use the cream.

Question 13

What must be taken into account when considering breach?

Answer 13

Reasonableness
Employee’s personal characteristics.

Question 14

How is causation approached in employer’s primary liability?

Answer 14

Factual and legal

Common example of factual causation - if employee can show that even if equipment had been provided, the employee would not have used it. The more dangerous the environment, the more onerous the duty.

Question 15

What defences apply to primary liability?

Answer 15

The standard general defences apply.

Judges very sceptical of ‘consent’ defence in this context - can only be invoked where there was a ‘genuine full agreement, free from any kind of pressure, to assume the risk of loss’

CN often succeeds.

Question 16

What kind of liability does the defendant incur when they are found vicariously liable?

Answer 16

Strict liability - there is no need to prove fault on the part of the defendant.

Question 17

Name the three elements which must be satisfied to show vicarious liability of an employer for an employee’s actions.

Answer 17

A tort has been committed by Party A

Party A is an employee of Party B or is in a relationship akin to employment with Party B

The tort was committed in the course of Party A’s employment / quasi - employment.

Question 18

How does the court approach whether a tort was committed in the course of employment / quasi - employment?

Answer 18

Courts will apply the ‘close connection’ test which considers the connection between the nature of the employment and the particular tort.
E.g. on employer’s premises during working hours / in course of performing duties.

1) What functions / fields of activities have been entrusted by the employer to the employee?

2) Sufficient connection to make this fair and just for employer to be held liable?

Question 19

Give examples of when vicarious liability has been found.

Answer 19

Causing a fire by carelessly smoking a cigarette while filling lorry with petrol

Accident driving on a lunch break [during the course of employment]

Employer liable for prohibiting an employee from enlisting help on a milk float as prohibition of help was done for employer’s business.

Travelling which has been compensated for work

Question 20

Give examples of when employers have not been found vicariously liable?

Answer 20

If the employee’s act was expressly prohibited

Question 21

How might employers seek to reclaim money from their employees if they are sued in vicarious liability for their torts?

Answer 21

Employers are often the ones sued because they will be in a financial position to pay.

They may then instead seek an indemnity from their employee under S1(1) Civil Liability (Contribution) Act. The court will allow this if it is just and equitable to do so.

Generally an employer’s insurers will not seek this contribution unless there has been wilful misconduct or collusion on the employer’s part.

Question 22

What is the distinction between a contract of service vs a contract for service?

Answer 22

Contract of service - employer / employee relationship

Contract for service - Independent contractor - not an employee

Question 23

How is an employment relationship identified?

Answer 23

The multiple factors test:

• Remuneration
• Control
• All other contractual factors consistent with an employment relationship

Question 24

How is remuneration interpreted in the multiple factors test?

Answer 24

Remuneration is in exchange for a personal service with a mutuality of obligations:

• If a worker has an unfettered right to send a substitute to do work in their place and employer does not pick substitute, cannot be an employment relationship.

Employer required to provide work to the employee

Question 25

How is control interpreted in the multiple factors test?

Answer 25

The more control the employer has, the more likely it will be that the other party is an employee. This includes who has control over tasks done, the way in which tasks are performed, and when and where the work is to be completed.

Question 26

How is "all other contractual factors consistent with an employment relationship" interpreted in the multiple factors test?

Answer 26

Things that point to an employer / employee relationship: - Tools / equipment being provided by the employer - Tax / PAYE treatment as an employee, as opposed to an independent contractor - Integration into organisation - Labels applied by parties - Benefits of holiday / sick pay

Question 27

What is the test for whether a relationship is 'akin to employment'?

Answer 27

Is it sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability? - Employer is more likely to be able to compensate than the tortfeasor - Tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer's behalf - Tortfeasor's activity is part of the business activity of the employer - By allowing the TF to carry on the activity, the employer created the risk of the tort being committed - The tortfeasor is to a greater or lesser degree, under the control of the employer.

Question 28

What happens if employer 1 lends an employee to employer 2?

Answer 28

General rule is that the original employer will remain vicariously liable. Court will consider the level of control the hirer has over the worker and the provision of equipment. Both employers can be vicariously liable, but this is rare. Will happen when both employers have an equal measure of control over the tortfeasor.

Question 29

What is the nature of an employer's duty to an employee?

Answer 29

It is non-delegable - meaning that they will always owe a duty of care

Question 30

How can breaches of statutory duty help employees in negligence cases at work?

Answer 30

Breaches of statutory health and safety regulations cannot be relied upon by employees as the basis for a claim for breach of statutory duty (s.47 Health and Safety at Work … Act 1974). However, the content of such regulations will be relevant is assessing breach of duty in negligence.