Employment Law Flashcards
(31 cards)
Topics covered in Employment Law (4 areas)
Vicarious Liability
Common-Law duties of an Employer
Common-Law duties of an Employee
Employment Legislation
Vicarious Liability is based on the law of delict
- Has there been a duty of care
- Has there been a breach in that duty of care
- Has there been a loss from that breach
Vicarious Liability only applies when (2 essentials)
Two essentials in bringing an act against employer
You must prove that the individual committing the delictual act:
1) Must be an employee
2) The pursuer must show that the employee was acting in the course of their employment.
The meaning of vicarious liability
Respondeat superior
Let the master be responsible
The meaning of vicarious liability
Respondeat superior
MUST be able to explain this term (in my own words/give examples)
Let the master be responsible
The meaning of vicarious liability
Qui facit per alium facit per se
Must be able to explain this term (in my own words/give examples)
A person who does something through the actions of another is liable as if he has done it himself
Employers defences against vicarious liability (2 defences)
1) Contributory negligence (eg can argue that an individual had engaged in contributory negligence by not wearing appropriate safety equipment)
2) Volenti non fit injuria- to a person who is willing no injury is done
(Eg in a situation where individuals have engaged in reckless behaviour. The employer cant be liable for the individual’s behaviour)
Employers defences of vicarious liability
Acceptance of risk may absolve the employer of any liability. If the employee is willing and accepted the risk then the employer may not be held liable.
It is not always clear whether a person is employed or self-employed.
To differentiate this what are the two types of contracts
1) A contract of service (Employed)
2) A contract for services (Self-employed)
A contract of services is for
Employed individuals
The employer has a duty of care and can be sued for vicarious liability by the employee in certain situations.
A contract for services is for
Self-employed individuals
How to differentiate if an individual is employed OR self-employed?
The Control of the employer
Ways an employer can control an employee includes:
- Contracts
- Codes of conduct
- Training
- Job role
- Uniforms
- Working hours (shifts)
- Performance measurement
These are all determined by the employer.
How to differentiate if an individual is employed OR self-employed?
Questions to ask
Can the employee be controlled?
AND
Are they Integrated (or not) into the system: Eg what equipment do they use What financial risk is taken Does the individual employ others Are there management tasks Who do the customers speak to ECT
If there is no control or no integration then individual is self-employed
If employment does not exist (the individual is self-employed) then there is no vicarious liability
Scope of employment Guidelines
Kirby v NCB (1958) provides guidelines to determine whether an employee was acting within the scope of his/her employment
In this case, it was established that
1) Kirby was an employee
2) But was not working within the scope of employment (was on a break)
Therefore could not claim vicarious liability against the employer
Two issues need to be proven to successfully sue for vicarious liability against the employer.
1) You are an employee
2) Need to acting within the scope of employment
Scope of employment Guidelines
Kirby v NCB (1958) case provides 4 guidelines to determine if there is a scope of employment
1) if the employer authorised the work, then the employer is responsible for it.
2) Even when the employee does authorised work in an unauthorised way, the employer remains liable
3) Where the employee has committed a delict when doing unauthorised work, the courts may decide that the employer is vicariously liable where the employee is considered to be acting in the employer’s interest.
4) If the employee uses the employer’s equipment for his/hers own purposes then the employer is not liable (only guideline to show there is not a scope of employment)
The common law duties of an EMPLOYER (5 duties)
- Pay wages
- Generally, no duty to provide work when paying employee
- Employee indemnity
- To show employees trust and respect
- To take reasonable care for employee safety
Common law duties of an EMPLOYER
What is employee indemnity (vicarious liability)?
This looks at when the employer adopts the liability on behalf of the employee.
The employer has a common law duty to indemnify employees against all losses and liabilities they incur when carrying out the employer’s instructions properly.
Common law duties of an EMPLOYER
No duty to provide work (however there’s 3 exceptions to this)
Under common law, an employer has no general obligation to provide employees with work as long as they are being paid.
However, there are exceptions to this:
1) Where the employee requires to be working in order to receive sufficient exposure to enhance his/her reputation (Eg A footballer)
2) The employee is paid on a ‘piece work’ or commission basis (EG fruit picker)
3) The employer is bound to provide work.
Health & Safety at work (4 duties of the employer)
Competent fellow employees (make sure everyone is trained to a high standard)
Adequate equipment and materials
Safe working systems
A safe place of work
Health & Safety
Competent fellow employees
The employer has a duty to take reasonable care in selecting safe and competent employees.
The relevant case law:
Hudson V Ridge Manufacturing Co (1957)
Smith v Crosslet Bros (1951)
Both of these cases look at silly behaviour in the work place. In Hudson’s case, the employer was liable because this situation had taken place before and the employer was aware of this. Whereas in Smiths case this prank had never been done before meaning that the employer was not vicariously liable.
Do the employers know about this behaviour if not then they are not vicariously liable.
Health & Safety
Safe working systems
The company (and any director or other officer) who consents to or is responsible for the commission of the offence may be liable to an unlimited fine and up to two years’ imprisonment.
