Employer Liability Flashcards
what duty does an employer owe an employee
An employer owes a non-delegable common law duty of care to their employees and, therefore, may be personally liable for harm caused to their employees
An employer may also be personally liable for the breach of a specific statutory duty, such as that arising out of the Employer’s Liability (Defective Equipment) Act 1969
An employer may be liable vicariously for injuries caused by an employee’s tort committed in the course of their employment.
Wilson & Clyde Coal Co Ltd v English [1938]
miner was injured by equipment at the end of the day. The HoL held that the employer was liable despite having appointed a competent manager to supervise the equipment.
Lord Wright in Wilson & Clyde v English stated that the employer’s duty requires the provision of:
A competent workforce Adequate material and equipment A safe system of work (including effective supervision) A safe workplace
Competent workforce
Waters v Commissioner of Police for the Metropolis [2000]: an employer’s duty extends to the bullying, victimisation or harassment of an employee by another employee.
Hudson v Ridge Manufacturing Co [1957]: an employer owes a duty of care to employees in deterring harmful conduct (in this case an employee was tripped up by a fellow employee who had a reputation for being a practical joker).
adequate equipment
“If an employee is injured in the course of employment by a defect in equipment provided by their employer and the employee can prove that the defect was (wholly or partly) caused by the fault of a third party (usually the manufacturer) then the employer will be liable”.
Safe system of work
The employer’s duty includes taking reasonable care of the employees by providing a safe system, including one to ensure:
Physical safety
Pape v Cumbria CC [1992]
safe workplace
Latimer v AEC Ltd
Is proving a duty enough?
You must also prove the breach (see Latimer v AEC Ltd).
And you must prove causation: McWilliam v Sir William Arrol & Co Ltd [1962] - even though the employer breached their duty by not providing a safety harness, they were not liable for breach because they could prove that the employee rarely wore it.
vicarious liability
It is a form of secondary liability where D is held liable when A (the tortfeasor) commits a tort by virtue of:
A relationship of (or akin to) employment; and
The fact that the tort was committed ‘in the course of employment’.
how accountable is the tortfessor to D
Entrepreneur test: are they independent contractors or employees?
Organisation test: how far the activity is a central part of the employer’s business.
Integration test: whether the function is being provided for the business or by the business (benefits the business).
Various Claimants v Christian Child Welfare Society and others [2012]
a religious order (through its bishop) was held vicariously liable for sexual abuse even though the tortfeasors were not employees and were not paid by the order.
What about prisoners
‘Akin to employment’ approach confirmed in
Cox v MOJ [2016]
“ a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities
Barclays Bank v Various Claimants [2020]
Cs were employees or prospective employees of Barclays, and Barclays had arranged for them to have medical examinations with Dr Bates. It was alleged that the doctor had, during these examinations, sexually assaulted the Cs, who sought to hold Barclays vicariously liable for those assaults.
Was this a ‘relationship akin to employment’?
The court stressed that if it was clear that the tortfeasor was engaged in an independent business of their own, then vicarious liability cannot be established.
borrowed employees and duel vicarious liability
B is C’s employee; he is sent by C to work for A. While B is working for A, they commit a tort. It has been established that A might be held vicariously liable for B’s tort even though B was not technically their employee, however, a new test for dual vicarious liability is developed.
Viasystems (Tyneside) Ltd v Thermal Transfer Limited [2006] – there could be ‘dual’ liability where the employee is so much part of the work, business or organisation of both employers.
The Lister or ’close connection’ test
Lister v Hesley Hall Ltd [2002] UKHL 22
“Whether the employee’s torts were so closely connected with his employment that it would be fair and just to hold the employer vicariously liable…[and whether the tort was] inextricably interwoven with the carrying out by the [employee] of his duties”.
Application of the Lister test:
Mohamud v WM Morrison Supermarkets plc [2016]
“The Court has to consider two matters.
The first question is what functions or ‘field of activities’ have been entrusted by the employer to the employee, or…what was the nature of his job ?
Secondly, the Court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice…”
An employer is not liable for independent contractors’ acts, but some duties are not delegable.
Woodland v Essex Country Council [2013]:
C is patient or child, i.e. vulnerable
Antecedent relationship between C and D
C has no control over how D chooses to perform the obligation
D has delegated some integral functions of positive duty
The 3rd party was negligent regarding the very function delegated by D
