Vicarious Liability (Paper 2) Flashcards
Control Test
- Decides if someone is an employeee or independent contractor
- Does the employer have the right to control How, When and Where the work is done?
- if there is significant control, the worker is more likely to be an employee
Mersey Docks and Harbour Board v Coggins and Griffiths
Economic Reality Test
- Decides if someone is an employee or independent contractor by looking at the working relationship
Ready Mixed Concrete v Minister of Pensions and National Insurance (1968)
Intergration Test
- Decides if someone is an employee or Independent Contractor
Stevenson, Jordan and Harrison LTD v Macdonald and Evans (1952)
Key questions in the intergration test
- Are they involved in day - to - day running of the business?
- Do they follow the company’s rules and procedures?
- Are they a part of the structure of the business (not just helping from the outside)
I yes, the person is an employeee and the employer can be held vicariously liable
Key questions/factors in the economic reality test
- Ownership of equipment
- One off payment or monthly salary
- Whether NI and tax are deducted fr the persons’s wage
- Whether the role has a fixed description
- Whether work is sourced by the person or given to them by someone else
The Salmond Test
- Wrongful act authorised by the employer
- Unauthorised way of doing something authorised
- Was the Tort/Crime committed in the course of employment?
What are the traditional tests?
- Control
- Economic Reality
- Intergration
What are the non - traditional tests?
- akin to employment
- close connection test
Liability for independent contractors
- The person who hired the contractor will NOT be liable if it is proven that the defendant was an independent contractor and not an employee.
Barclays Bank v Various Claimants (2020)
Akin to employment test
- used if the traditional tests don’t prove conclusive
- courts consider if the relationship between the defendant and tortfeasor is akin to an employment relationship
Catholic Child Welfare Society v Various Claimants and Institute of Brothers of Christian School (2012)
What is taken into account for the akin o employment test?
Details of the relationship:
- tortfeasor’s accountability to the defendant
- intergration into its sturcture
- performance of duties aimed at pursuing its aims and objectives on its behalf
What are the five criteria for the akin to employment test?
- The employer is more likely to be able to compensate the victim than the employee and can be expected to be insured against that liability
- Tort committed as a result of activity being taken by the employee on the employer’s behalf
- The employee’s activity is likely to be a part o the business activity of the employer
- The employer, by employing the employee, will have created the risk of the tort committed
- The employee will, to a greater/lesser degree, have been under the control of the employer
Close Connection Test
- used where the employee has committed a crime (crimes always fall outside the course of employment)
- courts only impose liability where there is a close enough connection between the crime an the employment situation
- the actions have to be related to the work
Lister v Hesley Hall (2002)
Morrisons Supermarket v Various Claimants (2020)
Was the tort/crime committed in the course of employment?
- Was the employee carrying out a task they were authorised to do (negligently)
- did the employee’s actions, although unauthorised, benefit the employer?
- in the case of a criminal act, can the employee’s actions be seen as closely connected to their stated role
The employer will generally be liable when:
- The employee does an authorised act in an unauthorised way (limpus v London general omnibus)
- The employee does an authorised act in a careless/negligent way (century insurance v northern ireland transport board)
- The employee’s actions are benefitting the business (Rose v Plenty)
Not in the course of employment
- acting outside scope of employment (Beard v London general omnibus 1900)
- Acting on a frolic of his own (Gilton v thomas burton)
- giving unauthorised lifts (Twine v beans express)
