C3: Employers' liability

Question 1

What are the two forms of employer’s liability in tort?

Answer 1

1. Personal liability in negligence
2. Vicarious liability

Question 2

What is central to all forms of employers’ liability?

Answer 2

A contract of employment (or of service), which creates the relationship of employer and employee between parties to the contract.

Question 3

What duty does an employer owe an employee?

Answer 3

A personal duty of care for their safety whilst doing their work.

Question 4

Is an employer liable for the tort of an employee which is committed in the course of employment?

Answer 4

Yes, the employer is vicariously liable for the tort of an employee which is committed in the course of employment. The victim of the employee’s tort can sue both the employee and the employer, and their potential liability is described as joint and several.

Question 5

How strict on the employer is vicarious liability?

Answer 5

Very strict - no fault on the part of the employer needs to be proven.

Question 6

What is meant by a non-delegable duty of care?

Answer 6

An employer has a non-delegable duty to take reasonable care for the safety of employees in the course of their employment.

“The obligation is fulfilled by the exercise of due care and skill. But it is not fulfilled by entrusting its fulfilment to employees, even though selected with due care and skill.”

Question 7

What four factors need to be considered when looking at an employer’s personal non-delegable duty of care to their employees?

Answer 7

Imagine an employer and an employee cheers’ing with some beer cans.

C - Competent staff (certificates)
A - Adequate supervision (Annie)
N - Necessary plant and appliances (equipment show)
S - Safe System of work (poster)

Question 8

When considering personal liability of employers, what would competent staff mean?

Answer 8

An employer may be liable at common law where an employee with insufficient experience or training is used and a fellow employee is injured. OR the employer is aware of a propensity of the employees to play practical jokes. (Fine if they’re unaware).

Question 9

Explain O’Reilly v National Rail and Tramway Appliances Ltd [1966] in terms of competent staff, personal liability (sledgehammer)?

Answer 9

O’Reilly was employed to break up scrap from railways. His colleagues persuaded him to hit, with his sledgehammer, a shell case embedded between the railway sleepers. When he did this, the shell exploded. It was held that the employer was not in breach of his duty because he had no previous knowledge that the workmen played practical jokes or were capable of encouraging such an act. The employer had not, therefore, failed to employ competent fellow employees.

Question 10

When considering personal liability of employers, what would plant and appliances mean? (Also guarantee of equipment)

Answer 10

The employer should provide the necessary plant and equipment and maintain it in reasonable condition.

This is not a guarantee of the equipment’s safety and at common law the employer could not be liable for a latent (hidden) defect which could not be discovered with reasonable care.

Question 11

Explain Bradford v Robinson Rentals [1967] in terms of plant and appliances, personal liability (broken window)?

Answer 11

Bradford was employed as a driver. He was sent on a job driving 400 miles in extremely cold weather. The van had a broken window and a heater that did not work. He suffered severe frostbite. It was held that the van was not safe and, therefore, the employer had failed in his duty to provide safe plant and equipment. Although the conditions were extreme, it was foreseeable that the employee would suffer some injury if sent out on a long journey in a van in that condition.

Question 12

When considering personal liability of employers, what would a safe system of work mean?

Answer 12

The employer must devise a safe and suitable system of work and instruct the employees what to do. They must take care to see that the system is complied with. (They can’t just supply the system, the have to also implement it)

Question 13

Explain McDermid v Nash [1987] in terms of safe system of work, personal liability (delegated)?

Answer 13

The House of Lords held that the requirement was for both devising a safe system of work and operating it. On the facts a safe system did exist, but the operation of the system had been delegated and the system was not operated as it should have been. The person to whom the operation of the system of work had been delegated was not an employee but an independent contractor. No vicarious liability would, therefore, arise out of his negligence in operating the system of work. The defendant employers remained personally liable to their injured employee, a young man with limited experience of the work.

Question 14

When considering personal liability of employers, what would adequate supervision mean?

Answer 14

Employers are responsible for making sure their employees are adequately supervised. In other words, employers are expected to be aware that employees are often careless about taking safety precautions and that dangerous working practices can develop.

Question 15

Explain Jebson v Ministry of Defence [2000] in terms of adequate supervision, personal liability (soldiers lorry)?

Answer 15

The nature and extent of an employer’s supervision was considered in Jebson v Ministry of Defence [2000]. A group of soldiers had gone for a night out. Anticipating that they would be worse for wear, the defendants – the soldiers’ employer – sent a lorry to pick them up and bring them back to barracks. The claimant, who was very drunk, fell and injured himself as he attempted to climb onto the roof of the lorry on its way home. In allowing his claim for compensation, the Court of Appeal held that the defendants had failed to ensure an effective system of supervision. Knowing the soldiers’ drunken state, the defendants ought to have had a supervisor in the back of the lorry to ensure that none of them injured themselves.

Question 16

What is the statute and regulations that govern employers’ liability in tort?

Answer 16

Health and Safety at Work Act 1974

AND

Management of Health and Safety at Work Regulations 1999. (to carry out risk assessments)

Question 17

What happens if there is a breach of health and safety under the 1974 Act? (criminal/civil)

Answer 17

It is a criminal offence and can be prosecuted by the Health and Safety Executive (HSE), which can mean large fines being imposed on employers who do not comply.

There is also (rarely) potential civil liability, but just because an employer has committed an offence under the legislation, an employee doesn’t have any direct cause of action in civil law under s47(1)(a) of the Act. Whilst evidence of a criminal offence will prove useful in any civil proceedings, an employee is still required to issue proceedings in tort for breach of the common law duty to take care.

Question 18

What is the Health and Safety Executive?

Answer 18

The Health and Safety Executive (HSE) can prosecute and impose large fines on employers that do not comply with the Health and Safety at Work Act 1974.

Question 19

Can a health and safety regulation impose civil liability?

Answer 19

No health and safety regulation will impose civil liability, unless express provision is made for them to do so.

Question 20

What are the regulations that go with HASAWA 1974?

Answer 20

Management of Health and Safety at Work Regulations 1999

Question 21

What does the Management of Health and Safety at Work Regulations 1999 require employers to do?

Answer 21

RATS! Managing Health and Safety… (imagine a rat with a hard hat and a clipboard)

R - risk assessments

A - appoint competent H&S persons

T - train workers on occupational health and safety; and

S - (Health and) Safety policy.

Question 22

Are employers liable for the torts of its independent contractors?

Answer 22

In principle, no, but there are some situations in which the employer remains primarily and personally responsible even thought the incident in question was caused by the act of an independent contractor. (E.g. dangerous/highway)

Question 23

When would an employer be liable for the tort of an independent contractor?

Answer 23

1. Where the employer has a non-delegable duty which cannot be discharged by an independent contractor, e.g. duty of care to its own employees

or if they hire an independent contractor to undertake a task that:

2. is inherently dangerous, see Bottomley v Todmorden Cricket Club [2003] or
3. is on or adjoining a highway which puts at risk persons in a public place, see Padbury v Holliday [2012]

Question 24

In the scope of what an employer is liable for, what is included for their employees but is not included for independent contractors?

Answer 24

Casual negligence incidental to their work, i.e. employer is only liable for those acts of the contractor which are an essential part of the work that the contractor was hired to do and not for collateral negligence, e.g. window fixer dropping tool on passer-by’s head.

Question 25

Does a hospital owe a non-delegable duty to its patients?

Answer 25

Yes, the hospital will remain liable for negligence of hospital workers who are not employees of the hospital, such as agency workers.

Question 26

Which two defences can be raised by the employer in their defence?

Answer 26

Volenti non fit injuria and contributory negligence.

Question 27

What is volenti non fit injuria?

Answer 27

The defence of “volenti”, or consent, provides a common law defence for an employer to argue that the employee consented to the risk and should therefore not be liable.

Volenti is rarely successful in this context and consent to a risk should not be inferred from the apparent willingness of the employee to continue in the job. Many pressures, including economic ones, influence a worker to keep a job, however inherently dangerous it may be (Smith v Baker [1891]).

Smith v Baker [1891]: Volenti is rarely successful in this context and consent to a risk should not be inferred from the apparent willingness of the employee to continue in the job. Many pressures, including economic ones, influence a worker to keep a job, however inherently dangerous it may be.

Question 28

What is contributory negligence?

Answer 28

Contributory negligence involves reducing the amount of liability (compensation) to reflect the claimant’s own contribution to his own injury. The courts are, however, conscious of the dulling effect on a worker of repetitive tasks in noisy conditions and the lapses which can occur when the routine of work is too familiar. As such, proportions of contributory negligence will usually be low.

Question 29

What is vicarious liability on behalf of the employer?

Answer 29

Where the employer is liable for the torts of its employee and is therefore distinctly different from any personal liability an employer has.

Question 30

What are the three requirements for the existence of vicarious liability?

Answer 30

(1) A tort has been committed.

(2) An employee committed the tort. So, there must be an employer–employee relationship – or, in some recent cases, a relationship “akin to employment”.

(3) The person who committed the tort was acting in the course of employment or was involved in an activity closely connected with their role in the organisation.

Question 31

Are employers who are found to be vicariously liable also liable for primarily liable to the claimant in negligence?

Answer 31

Yes, in the most common case of when an employee has negligently harmed another, the employer will probably have breached its duty to provide competent co-workers. As both the employer and employee have been negligent, the employer will be both directly and vicariously liable to the claimant.

Question 32

Which three tests are used to distinguish an employee from an independent contractor/self-employed person?

Answer 32

1. Control test
2. Organisation test
3. Multiple test

Question 33

Is an employer vicariously liable for an independent contractor?

Answer 33

An employer is vicariously liable for the actions of its employee but not for the actions of the independent contractor who is doing a job for them. They may however be personally liable for the conduct of independent contractors.

Question 34

What is the difference between a contract of service and a contract for services?

Answer 34

Contract of service: employee

Contract for services: independent contractor

Question 35

What is the control test?

Answer 35

The traditional test for whether someone is an employee or an independent contractor.

The courts look at the degree of control the employer exercised over a worker. If the employer could tell the worker what to do and how, when and where to do it, they were an employee; if it could not, the worker was not an employee.

Question 36

When would you treat the control test as the new, modern test for workers?

Answer 36

For ‘gig’ economy and workers that provide regular services to a single organisation. See Uber BV and others v Aslam and others [2021], where Uber drivers were ruled to be employees of Uber, due to them controlling prices, terms, acceptance, delivery of services and communication. Drivers are also classed as working when they are logged into the app ready to accept fares.

Question 37

What is the organisation test?

Answer 37

It considers a person to be an employee if they are part of the organisation.

Question 38

Why was the organisation test developed?

Answer 38

Because the control test was inappropriate in cases where the employee was a skilled profession, such as a doctor in a hospital.

Question 39

Which cases are relevant to the organisation test? (hospital workers, trapeze)

Answer 39

The test was used in Cassidy v Minister of Health [1951] when it was held that a hospital authority was vicariously liable for the negligence of full-time medical staff because they were part of the organisation of the hospital.

In Whittaker v Minister of Pensions [1967] it was held that a trapeze artist who broke her wrist during her act was part of the circus organisation and was therefore an “employee” for the purpose of industrial injuries benefit.

Question 40

What is the multiple test?

Answer 40

This test, which is the one usually used today, is based on the “economic reality” of the situation, which means that the court will look at all the circumstances in which the person works. These will include such aspects as where and when they work, how much control the organisation has over their activities, whether the organisation has the power to select and dismiss them, how their status is defined in their contract, how they are paid (e.g. lump sum or regular wages) and whether they pay their own tax and national insurance.

It is important to understand that no one factor in itself will be decisive: for example, a person may be paying their own tax and national insurance, or working at home, and still be an employee; on the other hand, they may be described as an employee in all the relevant documentation and be subject to a considerable degree of control, and yet be self-employed.

Question 41

In which case did the multiple test originate?

Answer 41

The multiple test originated in Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] in which the court had to decide the status of a lorry driver for national insurance purposes.
Factors suggesting a contract for services were:
- his contract said that he was self-employed;
- he had to buy his lorry from the company and maintain it himself;
- he was free to choose his hours of work and holidays and to delegate his work to someone else; and
- he was paid on the basis of what he actually did.

Factors suggesting a contract of service were:
- he had to paint the lorry in company colours;
- he could use the lorry only on company business; and
- he had to obey reasonable orders.

The court considered all the factors and found that he was self- employed. In this case, the power to delegate his work was regarded as the decisive factor. The important point to remember is that the law is flexible in this area. As Mummery J remarked in Hall (Inspector of Taxes) v Lorimer [1992]: “There is no single satisfactory test governing the question whether a
person is an employee or is self-employed.”

The courts have therefore abandoned the use of a single factor test and now widely use the multiple test under Ready Mixed Concrete.

Question 42

What is needed for casual and temporary workers to be considered employees?

Answer 42

There must be a ‘mutuality of obligation’, meaning the employer must be bound to offer work and the worker must be bound to accept. (Carmichael v National Power [1999].

If there is ‘personal service’, meaning that the employer only wishes one specific person to carry out the work, it depends on the degree of delegation when determining whether an employer-employee relationship exists (MacFarlane and Another v Glasgow City Council [2001]). In this case, gym coaches were not held to be employees.

Question 43

What are the rules on agency workers?

Answer 43

If a worker is supplied and paid by an agency, they are effectively an employee of the agent’s client (Motorola Ltd v Davidson and Another [2001]).

However, the Employment Tribunal indicated a willingness to imply that a contractual relationship existed between the employer and the employee, but James v London Borough of Greenwich [2008] held that the ET should only imply the contractual relationship when it is necessary to do so. ETs will be less inclined to find that an agency work has an employer.

(The Court of Appeal in James v London Borough of Greenwich [2008] held that an Employment Tribunal (ET) should imply a contractual relationship between the individual and the end user only when it is necessary to do so. In some previous cases, the courts had indicated a willingness to imply that a contractual relationship existed, so the effect of James v London Borough of Greenwich [2008] seems likely to be that ETs will be less inclined to find that an agency worker has an employer.)

Question 44

What is meant by the term ‘a relationship akin to employment’? Give an example.

Answer 44

Relationships which fall short of employment can still be sufficiently similar (akin) to employment relationships for the purposes of employers’ vicarious liability. An example of this would be abuse cases with priests, monks or nuns, who are automatically held not to be employees because they are regarded as having been called by God to their roles (priests) or because they are not paid to follow their vocations (monks and nuns).

Question 45

Why are ‘relationships akin to employment’ important for a claimant who wishes to seek compensation from an employer as well as the original tortfeasor?

Answer 45

In cases of clergy abuse, often the defendant is either dead or poor, after possessing no wealth due to their vocation. In order to get justice for the claimant, it is essential that an organisation be held vicariously responsible for the abuse that they suffered.

Question 46

What are the two leading cases around ‘relationships akin to employment’?

Answer 46

Catholic Child Welfare Society v Various Claimants (FC) [2012] concerned a claim brought by 170 men for sexual and physical abuse carried out by teachers at their Catholic boarding school “for boys in need of care” between 1958 and 1992. One group of defendants, subsequently replaced by the Catholic Child Welfare Society (CCWS), had managed the school from 1973. It had provided formal contracts of employment for the teachers, who were monks belonging to the Institute of the Brothers of the Christian School (the Institute). It was therefore relatively clear that there was an employment relationship between CCWS and the abusers. CCWS argued that the Institute should be held jointly vicariously liable. The Supreme Court held that there were two factors that would determine whether vicarious liability could exist in such circumstances:

• whether the relationship between the abusers and the defendants was one that was capable of giving rise to vicarious liability – see above; and
• the closeness of the connection between the individual and the organisation and the individual’s act or omission.

In this case, the relationship between the abusers and the Institute was sufficiently akin to that of employer and employees – although it was governed by religious vows rather than a contract – to satisfy the first stage. Also, there was a very close connection between the abusers’ status as Brothers and the trust that had been placed in them as teachers. As it was that trust that had led to the circumstances that had made the abuse possible, the second stage was also satisfied. The Supreme Court therefore held that CCWS and the Institute were jointly vicariously liable for the abuse.

This principle was further extended in Cox v Ministry of Justice [2016], when a prisoner working in the kitchen of HMP Swansea dropped a large bag of rice onto the claimant, who was working as the catering manager at the prison at the time. The Ministry of Justice was held to be vicariously liable for the prisoner’s actions, despite the absence of an employment contract or commercial wage. The control test and the organisation test appear both to have been satisfied. Lord Reed saw this as an example of the “akin to employment” relationship demonstrated in Catholic Child Welfare Society.

Question 47

What three kinds of acts will the employer be liable for when an employee is ‘in the course of employment’?

Answer 47

1) a wrongful act authorised by the employer; or

2) a lawful act authorised by the employer, but carried out in a wrongful and unauthorised way; or

3) an act which is “closely connected” to the tortfeasor’s role in the organisation. (i.e. petrol station assault (customer service)

Question 48

What is meant by ‘a frolic of one’s own’? Give two examples.

Answer 48

Acting outside the course of employment is commonly described as being “on a frolic of one’s own”.

The most obvious example of a “frolic” is when the employee takes a trip they are not authorised to take, or stays at work for some purpose of their own after they should have gone home.

Question 49

Explain the different outcomes in Hilton v Thomas Burton [1961] (cafe) and Smith v Stages [1989] (24 hours) in terms of why the employer was liable or not?

Answer 49

Hilton: Employee was driving back from an unauthorised meal break at a cafe 7 miles away, when they were supposed to be working. The employer was not liable.

Smith v Stages: Employees were travelling back from a job where they worked 24 hours straight and crashed the car. Employer paid for the time they spent travelling and for their travelling expenses. This was influenced by this fact. The employer was liable.

Question 50

What had to be clarified after the judgment of Smith v Stages [1989] (24 hours) about travelling to and from work?

Answer 50

In Smith, the employer was liable for a few reasons (24 hours work, paid for travel), but the HoL expressly said that an employee is not in the course of employment when simply travelling to and from their place of work in the normal way.

Question 51

What was the old Salmond test?

Answer 51

According to the old Salmond test (named after the textbook which popularised it) an act of criminal activity fell in the course of employment if it was either

(1) a wrongful act authorised by the employer or
(2) a wrongful and unauthorised manner of doing some act authorised by the employer.

It followed that if the criminal act had not been authorised by the employer and was not an unauthorised manner of performing some act that the employer had authorised, the act fell outside the scope of the employment and the employer escaped vicarious liability.

Salmond’s test was explicitly rejected by the House of Lords in Lister v Hesley Hall Ltd [2001],

Question 52

What is a case example for ‘close connection’ in criminal activity? (warden abuse)

Answer 52

Lister v Hesley Hall Ltd [2001], which stated that an employer may even be vicariously liable for the employee’s criminal conduct. The claimants alleged that they had been sexually abused while in the care of an employee of the defendants, while he was a warden at Hesley Hall school. The House of Lords ruled in the claimants’ favour that, even where the employee’s conduct is not expressly authorised, the employee’s act is still within the course of employment if there exists a close connection between the work the employee was employed to do and the employee’s tort. In the words of Lord Millett in Lister, the employer will be liable “where the unauthorised acts of the employee are so connected with acts which the employer has authorised that they may properly be regarded as being within the scope of his employment”. On the facts, it was held that the acts of abuse had been closely connected with the warden’s employment by the school, because the school had given the warden extensive powers and responsibilities for the welfare of the pupils involved. The basic idea is that when the employer gives an employee a certain measure of power and control over the claimant, the employer should bear the risk that the employee may abuse that power and control in ways that cause harm to the claimant.

Question 53

Where else has the close connection test in Lister been applied? (nightclub, Christmas party)

Answer 53

Mattis v Pollock [2003] in which the Court of Appeal held that the owner of a nightclub was vicariously liable for an aggressive attack by the nightclub doorman during the course of a fight with a visitor to the club.

Bellman v Northampton Recruitment Ltd [2018] the Court of Appeal held that there was sufficient connection between a managing director’s job and his drunken and extremely violent assault on an employee at a Christmas party (which left him severely disabled) to render the company vicariously liable for his actions.

Question 54

Which recent judgment was revered regarding the ‘close connection’ test? (data breach)

Answer 54

M Morrison Supermarkets plc v Various Claimants [2020]. During the period in question, the tortfeasor, Andrew Skelton, was employed as a senior internal IT auditor at Morrisons. He had the right to access personal data of employees as part of his role and he uploaded this data to a file-sharing website. Originally, Morrisons was held vicariously liable due to the close connection test. However, in 2020 the Supreme Court upheld an appeal by Morrisons, finding that the lower courts had “misunderstood the principles governing vicarious liability in a number of relevant respects.” Lord Reed, giving the judgment of the court, stated that the relevant question was “whether Skelton’s disclosure of the data was so closely connected with acts he was authorised to do that, for the purposes of the liability of his employer to third parties, his wrongful disclosure may fairly and properly be regarded as done by him while acting in the ordinary course of his employment.” The Supreme Court held that the answer was no on several grounds.

Question 55

Give a case example of when the worker was not given proper equipment (plant/appliance) in order to carry out his work (window cleaner fell from small sill)?

Answer 55

General Cleaning Contractors Ltd v Christmas [1953] a window cleaner was injured when he fell from the building to which he had been sent to clean windows. The nature of the task required him to balance on a small sill only 6 inches wide. His employer had provided him with no tool to keep one of the sash windows open as he cleaned the glass. During the cleaning process, one of the windows closed and the cleaner was left with no means of holding on to the building, from which he fell. The House of Lords found the employer to be in breach of its duty of care.

Question 56

If an employer condones a way of working and provides specific warnings, but the employee does it anyway, is the employer liable? (boxes)

Answer 56

No, not in this case.

Ammah v Kuehne & Nagel Logistics Ltd [2009]: The claimant, Ammah, stood on an upturned plastic box and fell from it when it moved under his weight. The claimant was working in the despatch department and his work involved getting items down from the shelves. There was a specific warning against standing on boxes to reach the upper shelves and alternative methods, such as portable steps, were provided. It was possible that from time to time workers may have stood on boxes but the practice was not condoned by the employer. On these facts the claimant had taken a risk for his own safety, and the accident was not one for which his employer was to blame.

Question 57

If the defendant employer employs an independent contractor to do something dangerous, would they be liable if the contractor was injured?

Answer 57

Yes, the employer didn’t take reasonable care to ensure the contractors were capable and safe to do the work.

Bottomley v Todmorden Cricket Club [2003]: where the owner of the cricket club was held liable for the negligence of independent contractors in putting on a fireworks display at the club.

Question 58

Would an employee accidentally backing into another person in the course of their employment mean that the employer will be vicariously liable?

Answer 58

Yes.

Kay v ITW Ltd [1967] a general warehouse assistant needed to drive a forklift truck through a warehouse door that was blocked by a lorry being loaded with goods. He got into the cab of the lorry and, without checking whether anyone was behind it, turned the key. The vehicle moved backwards, injuring its driver, who was working behind it. It was held that the company was liable to the driver for his injuries, because the employee had been broadly acting within the course of his employment, and his action “was not so gross and extreme as to take his act outside the scope of his employment”.