7 - TORT - Employers' Flashcards
What factors are considered when identifying an employment relationship?
a. Remuneration & mutuality of obligations: employee being paid & employer providing work that the employee must do (0 hour contracts unlikely to be held as employment)
b. Control: the more control, the likelier an employee relationship
c. All other contractual factors consistent with employment e.g. tools & equipment provided; tax/PAYE treatment; benefits
What factors are considered for doubtful cases, to determine a relationship akin to employment?
Must be sufficiently analogous to employment to make it fair, just & reasonable
- Employer more likely to be able to compensate C
- Tort committed due to activity undertaken by tortfeasor on their behalf
- Tortfeasor under employerโs control
- Tortfeasor activity part of employerโs business activity
What are cases for relationship akin to employment?
- Barclays insisted staff see doctor who abused someone - doctor not akin to employment ๐จโโ๏ธ๐
- prisoner working in catering dept of prison was akin to employment ๐จโ๐ณ
What is employersโ primary liability?
- Where an employee sues their employer for breaching DoC owed to employee
- duty is personal & non-delegable
What is the standard of care for EPL?
To take reasonable care, taking into account an employeeโs
personal characteristics
What defences apply for EPL?
Normal ones (although consent is rare) - contributory negligence most common
Where an employer lends an employee, who is vicarious liable?
Still the original employer (although both employers could be)
What test is applied to show the tort was committed in course of employment? (for vicarious liability)
- What functions entrusted to employee?
- Was there sufficient connection between position in which they were employed & the wrongful conduct to make it fair, just & reasonable to hold employer liable?
Lunch breaks reasonably expected; are they going about employerโs business at time?
If act unauthorised/specifically prohibited, seen as โfrolic of their ownโ
Whatโs a case for sufficient connection with work?
- Morrisons held liable for assault and battery by staff member who followed customer out of store - sufficient connection. ๐๐ฅ
- Cyclist collided with staff member crossing street from one office to another wearing company uniform 40 mins after shift had ended - no connection. ๐ถโโ๏ธ๐ดโโ๏ธ๐ฅ๐
What are the employersโ obligations?
- safe and competent employees ๐คก
- Safe and proper plat and equipment โ๏ธ
- safe place of work ๐ญ
- Safe systems of work ๐
What is the case for competent employees?
Practical joker told off for years - liable
๐คก
What is the case for safe plant and equipment?
- boots for splashes of molten metal (enough at the time) ๐ฅพ๐ฅ
- busses lack of protective screens OK because they reflected light and route was low risk ๐๐ก
What is the case for safe place of work?
- reasonable steps required to make sure window cleaners had a safe place of work ๐ช๐ซง
What is the case for safe system of work?
- window cleaners climbing on windowsills and had no training ๐ช๐ซง๐คก๐
- metal worker provided with goggles but employer must encourage and insist on wearing them ๐ฅฝ๐
- foreman discouraged use of barrier cream ๐งดโ
What is the case for whether an employer is liable for an employee
Milk float driver ignored comapny orders and allowed a boy to help him injuring the boy. Employer still liable as driver was engaged on company business.
๐ผ๐ถ๐ถ๐ท