Tort - Employer's Liability And VL Flashcards
What are the three elements needed to establish the VL of an employer?
Tort committed
Employment or agency relationship
Tort committed in the course of employment.
Have to consider this in relation to the Employer’s Liability (Compulsory Insurance) Act 1969 - employer has to take out insurance
Broadest shoulders idea - Eric Posner - tort law imposes liability to allocate risks
Must ask whether it is fair and just to impose liability.
Which test would you apply to determine whether there is an employment or agency relationship?
Ready Mixed Concrete Apply the 'economic reality test'. RCC Remuneration Control Contractual Terms.
Use this for employer’s liability to employees and vicarious liability.
Are causal workers likely to be employees? Case?
What else did this case easy you should look at when determining if the individual is an employee or an agent?
Warner Holidays
No they’re not. They’re more like agents.
Have to look at the level of remuneration, provision of tools and equipment, salary, tax, PAYE, NICs, sick pay, bearing the risk of the profit or loss, residual control, hours of work control, ability or right to do other work, labelling of relationship, mutuality of obligations (hence casual workers are deemed to have an agency relationship rather than an employer-employee relationship). Uniforms too.
Which cases would you use as the authority on relationships “akin” to employment relationships?
What is this a reformulation of?
JGE v Province of Our Lady Charity.
Pope = head office. Bishop = regional head. Priest = local branch.
So elation ship akin to employment even though not paid (get money from donations)
Catholic Child Welfare Society 2012
Brothers committing sexual abuse. Was a relationship akin to employment since their position gave them power.
The ‘akin to an employment relationship’ is a reformulation of the Lister “Close Connection Test”
What was the prison employment case?
Cox 2014 (upheld in the 2016 SC decision) Prison had no choice but to employ then, and since need an element of volition for an employment relationship, it was instead a relationship "akin" to an employment relationship in this case.
Court took into account the integration and control factors - so the MoJ were vicariously liable. Policy argument here too - those with the broadest shoulders.
In which case was C assaulted by a bouncer?
Hawley v Luminar Leisure
Bouncer had been given orders by Luminar leisure, and had been given uniform. Sufficient control and integration was show for an employment decision to be shown. So LL were vicariously liable.
Policy factors at play here too - broadest shoulders.
(Note Viasystems was not applied)
Who is responsible when employees are lent?
Generally the original employer remains liable. However in very rare circumstances both employers may be jointly liable
Viasystems.
It is a question of control and integration. Chauffeur vs taxi example.
Cf. Luminar Leisure where the agent became responsible due to the level of integration and control shown
Is it possible to have two employers at the same time?
Yes
Biffa Waste
Both can be vicariously liable if have equal control over the worker. Joint in the sense that both are entitled to exercise that control.
Burden of proof is on the old, original employer to show that the liability has shifted to hirer.
Cf. Luminar Leisure
In which case was a lorry driver smoking near petrol?
What was the point of law in this case?
And the criticisms?
Century Insurance
This held to be IN the course of employment since the employee was doing authorised actions in an unauthorised way. Looking at the MODE of employment here.
Criticism: only looks at the manner and not at the nature of the work.
What can employers prohibit in relation to their employees’ work? What can’t they prohibit?
Can prohibit the SCOPE of an employee’s work but can’t prohibit the MODE
Rose v Plenty
Boy was injured while helping the milkman - this was MODE so the prohibition wasn’t accepted, so employer was vicariously liable for the boy’s injuries.
This scope/mode distinction arose out of the criticisms of the Century Insurance case.
In which case was it stated that am employee’s action as will be outside the course of employment where the employee’s act constitutes a “frolic of his own”?
Joel v Morrison
The deviation from the route - depends on what in order for the employer to be vicariously liable?
The extent of the deviation.
Storey v Ashton
Employee will be outside employment if the route is new, on the way to/from work, unconnected with the driver’s employment, or independent of the employment.
When travel expenses are paid will a journey be more likely to be within the course of employment? Case?
Smith v Stages
Driving between workplaces - paid expenses (and within working hours) so within the course of employment.
What was the test set out in Lister?
Close Connection Test
Child abuse where the job involved working with children, so was deemed to be within the course of employment, so employer was vicariously liable.
Expanded on in JGE v Province of our Lady Charity (“akin” to employment relationship) and Catholic Child Welfare Society
Which case was about abuse by priests?
MAGA v Birmingham Archdiocese
There was a relationship akin to employment.
There was a sufficiently close connection and it was fair, just and reasonable to impose the duty on the employer.
His job was to look after youth, and some of the abuse happened on the church premises. Priest in a position of power and trust. Violated this.
