Employer's Primary Liability and Vicarious Liability

Question 1

What is an employer’s primary liability?

Answer 1

Where an employee sues their employer for breaching their duty of care to the employee.

Question 2

What is meant by the duty of care imposed on employers is personal and non-delegable?

Answer 2

This means that regardless of who the employer uses to carry out tasks, the ultimate responsibility for the safety of the employee rests with the employer.

Performance of duty can be delegated but not liability for breach. Employers are therefore directly liable if those they have entrusted with responsibility fail to exercise reasonable care in respect of an employee’s safety

Question 3

What is the primary duty an employer owes to an employee?

Answer 3

They owe duty to take reasonable precaution to ensure an employee’s safety while at work

Question 4

What are facets of the primary obligation of employers to ensure their employee’s safety while at work?

Answer 4

• safe/competent employees
• safe/proper plant and equipment
• safe place of work/premises
• safe systems of work

Question 5

Do the usual rules in relation to breach, causation, remoteness and defences apply to employer’s primary liability?

Answer 5

Yes

Question 6

What standard is to be applied to employer’s in deciding whether they have breached their primary liability to employees?

Answer 6

They only have to take a reasonable level of care and precaution based on that the reasonable employer would do.

Question 7

What should an employer take into account in determining their duty towards employees?

Answer 7

Their personal characteristics - some employees may be at greater harm due to some risks so appropriate precautions should be taken

Question 8

If an employer fails to provide safety equipment, will causation be satisfied?

Answer 8

Not necessarily.

Causation may not be satisfied if they can show that even if it had been provided the employee would not have used it

Question 9

When will mere provision of safety equipment not be enough to satisfy duty of care to employees?

Answer 9

In more dangerous working environments where may be necessary to give specific instructions about safety equipment or to even enforce its use

Question 10

When is the defence of consent likely to be successful against employer’s primary liability?

Answer 10

Rarely - judges are sceptical of this.

Only where ‘there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss’

Question 11

What is vicarious liability?

Answer 11

Where one party is held liable for the torts of another and there is a special relationship between the parties meaning liability can be imposed on the other

Question 12

For vicarious liability to attach, is it necessary to show fault on the part of the defendant who did not commit the tort?

Answer 12

No - strict liability is incurred so need to prove fault

Question 13

What three elements must be proven for a vicarious liability to be imposed?

Answer 13

• a tort has been committed by party A
• Party A is an employee of Party B or failing that, Party A is in a relationship akin to employment with Party B
• The tort was committed in the course of Party A’s employment/quasi-employment

Question 14

Can there ever be vicarious liability if there is no tort?

Answer 14

No - no tort = no vicarious liability

Question 15

What test is to be applied in determining whether the tort was committed in the course of Party A’s employment/quasi-employment?

Answer 15

The close connection test

Question 16

What is the close connection test for determining whether the tort was committed in the course of Party A’s employment/quasi-employment?

Answer 16

Needs to be established that there was a closeness of connection between the employee’s wrongful act and their employment.

Useful to ask whether there is a close connection between the employee’s tort and the role they are employed to do?

Question 17

What guidance was given on the close connection test in Mohamud v WM Morrison Supermarkets?

Answer 17

UKSC held test was two-fold:

• what functions or ‘fields of activities’ have been entrusted by the employer to the employee (what was the nature of their job)?
• was there sufficient connection between the position in which they were employed and their wrongful conduct to make it fair and just for the employer to be held liable?

Question 18

Where an employer is held to be vicariously liable for an employees’ actions, can they seek contribution for any damages they have to pay out as a result?

Answer 18

Yes - under the Civil Liability contribution act an employer may be entitled to seek an indemnity from their employee

Court will allow such a claim where it is just and equitable to do so

Question 19

When is there an employer/employee relationship?

Answer 19

Where there is a contract of service

Question 20

When is there an employer/independent contractor relationship?

Answer 20

Where there is a contract for services

Question 21

What is a contract of service?

Answer 21

A contract under which services are provided in an employer/employee relationship

Question 22

What is a contract for services?

Answer 22

A contract under which services are provided by an independent contractor, not in an employer/employee relationship

Question 23

What are the two main reasons why it matters whether someone is an employee or not?

Answer 23

• protection offered to employees is higher than other workers
• generally necessary to show employer/employee relationship or a relationship akin to an employer/employee relationship to establish vicarious liability

Question 24

What is the multiple factors test for establishing an employment relationship?

Answer 24

Three part test considering:

• is there remuneration in exchange for personal service and mutuality of obligations
• control and
• all other contractual factors consistent with an employment relationship

Question 25

Under the multiple factors test for establishing an employment relationship, what must be established in relation to remuneration in exchange for personal service and mutuality of obligations?

Answer 25

Employee must be being paid to fulfil their duties personally.

If a worker has unfettered right to send a substitute to do work in their place this cannot be employment relationship

Mutuality of obligations means the employer is required to provide work to the employee and the employee is required to do the work.

Zero hours contract unlikely to mean that worker is employee.

Question 26

Under the multiple factors test for establishing an employment relationship, what must be established in relation to control?

Answer 26

The more control the employer has over the worker more likely they are to be employee.

Consider who has control over the tasks to be done, the way in which the tasks are performed and when and where work is to be completed

Question 27

Under the multiple factors test for establishing an employment relationship, what is relevant to all other contractual factors consistent with an employment relationship?

Answer 27

a. Tools and equipment are provided by the employer

b. Tax/PAYE treatment as an employee rather than an independent contractor

c. The employee is being integrated into the organisation

d. The parties labelling the relationship as an employment relationship - but the labels given to the party (either way) are not conclusive; and

e. Receiving benefits such as holiday pay and sick pay

Question 28

When is it open to the courts to find a relationship akin to employment?

Answer 28

Only in doubtful cases where the tortfeasor is not an employee but nor are they carrying on their own independent business

Question 29

What is the test for determining whether there relationship is akin to employment?

Answer 29

Whether the relationship is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability

Question 30

What the UKSC consider were useful factors in determining whether the relationship was akin to employment?

Answer 30

1. The employer is more likely to have means to compensate the claimant than the tortfeasor
2. The tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf
3. The tortfeasor’s activity is part of the business activity of the employer.
4. By allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed; and
5. The tortfeasor is, to a greater or lesser degree, under the control of the employer

Question 31

Is an employer vicariously liable for an employee that has been lent to another employer?

Answer 31

General rule is that they will remain liable

Question 32

How will it be determined if an employer is vicariously liable for an employee that has been lent to another employer or if the new employer is liable?

Answer 32

Question of level of control hirer has over the worker and provision of equipment.

The person who has control over how to tell the employee the manner in which the work should be done, who lends them the equipment, pay the wages, have the power to dismiss them and determine duration of post are the person who could be vicariously liable for their actions.

Question 33

Is it possible for two employers to vicariously liable where an employee is lent? When might this occur?

Answer 33

Yes.

May occur where an employee is lent for another employer and both employers are entitled and obliged to control the employee’s actions so as to prevent the negligent act ie the employers have an equal measure of control over the tortfeasor