Old test for VL Flashcards
(8 cards)
Yewens v Noakes - the control test:
emoloyer had control over the work and how the work should be done
'’person who is subject to the command of his master as to the manner in which he shall do his work’’.
sets out the control test as a way of defining an employee
Performing Rights Society v Mitchell and Booker
an agreement between a band and the dance hall company that determined that the company has the right to control over the type of music that is to be performed by the band and how they will behave on their performance. Here, the members of the band are said to be employees as the dance hall company had control over the members of the band.
The nature and degree of control can determine an employee
Why has the control test become less effective?
nowadays employees are more skilled and professional and the size and complexity of businesses has increased, the control test has therefore become less effective and when the right to control has been changed to actual control, it is no longer possible to draw the correct distinctions by only using a single test. the control test is also said to be unsuitable for employees who are highly skilled, therefore other tests have emerged.
How do you define control?
Lord Thankerton in Short v J W Henderson
- power to select the servant
- the right to control the method of working
- the right to suspend and dismiss
- payment of wages
it most modern cases it can be impossible to use this test, however, it can still be used in cases involving borrowed workers.
Mersey Docks and Habour Board v Coggins and Griffiths
use control test for borrowed workers
A crane driver had been hired out by his employers, to stevedores who unloaded and loaded ships. By his negligence the driver injured a person in the course of his work. His employers, the harbour board had made a contract which set out that he was the employee of Coggins, but the HB paid his wages and kept the power to sack him. When deciding who was vicariously liable the house of lords decided that:
- the terms in any hire contract of an employee are not decisive
- the permanent employer is presumed liable unless the contrary can be proved, and
- if an employee alone is hired out there can be an inference that the hirer becomes the employer. if the employee is hired out with equipment, the inference is not as strong as the hirer may not have any control over how the equipment can be used
the control test can be used when employees are borrowed
Hawley v Luminar
the control test can be used for bouncers operating outside premises
a bouncer who was supplied to nightclubs by a firm of specialist supplies, assaulted a customer outside the defendants club. The suppliers went into liquidation so the injured claimant sued the club. the court decided that, as the club excercised so much control over the bouncer in how he should do his work. they employed him and were vicariously liable for his actions
Viasystems Ltd v Thermal Transfer
LP: two employers can be responsible
The claimants contract with D1 to install air conditioning in their factory, D1 subcontracted some work to D2. D2 agreed with D3 to provide fitters and fitters mates on a labour only basis. S was a fitters mate, he damaged some ducting that came into contact with a sprinkler which fractured, causing a flood.
It had to be decided whether D2 or 3 were vicariously liable for S’s negligence
The leading authority was Mersey Docks.
There was a long standing assumption, which was not a legal principle that a finding of dual vicarious liability was not possible. The reason for this was that in order to find a temporary employer vicariously liable there would have to be a transfer of employment. The question for the court was, ‘who was entitled and in theory, obligated to control the employees negligence act in order to prevent it?’ there could be some cases in which the sensible answer would be each of the two employers, so D2 and D3 were both liable. their responsibility was equal so they had to pay 50% of the claim each.
The intergration or organisation test - where was it established and what is it?
established in stevenson jordan and harrison v macdonald and evans by lord denning
the more the worker is intergrated, the more likely they are an employee
a worker will be an employee if they are fully integrated into the business, if their work is only as accessory they will not be classed as an employee.
This still has problems, for example, teachers who are examiners will still have a contract and pay tax but are not employees
