VL Structure
- intro
- relationship of employment/’akin to’ employment
- Close connection
- Conclusion
Intro
- define - where one person is liable for a tort committed by another; usually an employer who is liable for any tort committed by one of their employees during the course of employment
- identify - the tort committed buu the tortfeasor
- There is a 2-stage test which must be satisfied in order for D to be liable for torts commited by a 3rd person
- relationship of employment/’akin to’ employment
- Close connection
Stage 1: RELATIONSHIP OF EMPLOYMENT OR “AKIN TO” EMPLOYMENT:
- No liability for torts committed by independent contractors ( Barclays Bank V Various Claimants)
- Traditional tests of employment: control, integration, economic
reality (multiple) test - In non-traditional employment relationships, consider whether the
relationship is ‘akin to’ employment - More than one employer can be held vicariously liable
- Key Cases include: Barclays Bank v Various Claimants (2020),
Ready Mixed Concrete (1968), Catholic Child Welfare Society
(2012), Cox v MoJ (2016)…
Integration test
A worker will be an employee if his work is fully integrated
into the business: Stevenson, Jordan and Harrison v MacDonald and
Evans (1952). If a person’s work is only accessory to the business, that
person is not an employee.
A worker will be an employee if his work is fully integrated
into the business: Stevenson, Jordan and Harrison v MacDonald and
Evans (1952). If a person’s work is only accessory to the business, that
person is not an employee.
Control test
One feature of an employment relationship is the ability to control the way
a job is done. An employee is told what to do and how to do it, whereas an
independent contractor is only told what to do.(Mersay Docks & Harbour Board v Coggins and Griffiths)
Economic reality (multiple) test
Ready Mixed Concrete v Minister of Pensions (1968)
The Court said that 3 factors must exist before a worker can be
classified as an employee:
1. The employee agrees to provide work or skill in return for a
wage;
2. The employee accepts that the work will be subject to the
control of the employer;
3. All other considerations in the contract are consistent with
there being a contract of employment, rather than any other
relationship.
All factors relating to the economic reality are considered, including:
* Who bears the chance of profit or loss?
* Is the worker paid a regular salary or paid per job?
* Does the worker pay income tax and national insurance?
* Does the contract describe the worker as an employee or not?
* Independence in doing the job – can the worker delegate his work to
another; take on work from someone else or decide when to do a job?
* The ownership of any tools, plant or equipment
additional info for VL - employment relationship
Note: It is possible for more than one employer to be
vicariously liable, e.g. Viaystems Ltd v Thermal Transfer
(2005), where the negligent employee was working under
supervision and control of employees of two different
companies.
A problem might state: “A works for B Ltd”. Don’t assume they
are automatically an employee but instead look at all the facts
to see whether it is consistent with an employment relationship.
‘ Ak i n t o em pl o ym e n t’ te st fo r n o n-tr a di ti o n a l
e m pl o ym e n t r e l a ti o ns hi p s
Catholic Child Welfare Society v Various Claimants - > w/out formal employmment contract -> relationship similar enough based on several factors: - The hierarchical structure of the Institute
- The Institute’s ability to direct where its members worked
-The importance of the members’ work (teaching) to the Institute’s overall mission.
-The fact that members were bound by the Institute’s rules, which shows a level of control.
another 2 cases for akin to employment
Cox v Ministry of Justice (2016) -> similar to -> prisoner integral part of prison activities, organisatifon doesn’t need to carry out commercial activity or making a profit
Barry Congregation of Jehovah’s Witnesses v BXB (2023) -> factors to consider -> carying out work on behalf, assigned work, duties which furtherd and were integral to the aims and an appointment process
Close connection test
Circumstances where the tort falls within the course of employment,
e.g. employee doing job negligently, acting against orders yet
furthering the aims and objectives of the employer
* Circumstances not within the course of employment, e.g. “frolics” or
outside scope of employment
key cases for stage 2
Century Insurance v NI Transport (1942),
Limpus v London General Omnibus (1862), Hilton v Thomas Burton
(1961), Fletcher v Chancery (2017), Lister v Hesley Hall (2001),
Mohamud v Morrisons (2016), Barry Congregation v BXB (2023)…
employee actin negligently
If an employee does his or her job badly, the employer can be
vicariously liable for their actions which cause damage to another.
Century Insurance v Northern Ireland Transport Board (1942)
Acting against orders
If an employee does his or her job badly, the employer can be
vicariously liable for their actions which cause damage to another.
- Century Insurance v Northern Ireland Transport Board (1942)(liable)
- Rose v Plenty (1976) Liable -> the employer was benefiting from
the work undertaken by the boy.
- Twine v Beans Express (1946)(not liable) employers were gaining
no benefit from it.
Employee acting on a “frolic” of their own
If an employee causes injury or damage to another while doing something
which has nothing to do with their employment, or at a time or place
outside of work, an employer will usually not be vicariously liable.
Hilton v Thomas Burton (not liable since on frolic of own)
Beard v London General Omnbus (not employed to drive so not liable)
Chell v Tarmac -> not liable as no connection
Fletcher v Chancery supplies -> not sufficiently close connection
(Note: travelling to and from work usually outside employment but travelling between workplaces may be liable -> Smith v Stages)
criminal actions of an employee
Offences against the person (e.g. battery) are also considered torts of
trespass to the person so an employer can be liable for the crimes of an
employee provided there is a close connection between the crime and
acts that the employee was authorised to do.
Lisster V Hesley Hall -> close connecteion with his employment
Mattis v Pollock-> closely connected
Mohamud v Morrison Supermarkets -> closely connected
(Note: If close connection test will not
be satisfied simply because the employment provides the tortfeasor with an
opportunity to commit wrongful conduct. -> Morrisons V Various/ Barry Congregation v BXB)
VL Conclusion
- Decide whether whether the employer will be liable for the damage
suffered by the Claimant. - Employer may recover any compensation paid out from the
employee, e.g. deduction from wages (Civil Liability (Contribution)
Act 1978).
