Employment Law

Question 1

Topics covered in Employment Law (4 areas)

Answer 1

Vicarious Liability
Common-Law duties of an Employer
Common-Law duties of an Employee
Employment Legislation

Question 2

Vicarious Liability is based on the law of delict

Answer 2

• Has there been a duty of care
• Has there been a breach in that duty of care
• Has there been a loss from that breach

Question 3

Vicarious Liability only applies when (2 essentials)

Answer 3

Two essentials in bringing an act against employer
You must prove that the individual committing the delictual act:
1) Must be an employee
2) The pursuer must show that the employee was acting in the course of their employment.

Question 4

The meaning of vicarious liability

Respondeat superior

Answer 4

Let the master be responsible

Question 4

The meaning of vicarious liability

Respondeat superior

MUST be able to explain this term (in my own words/give examples)

Answer 4

Let the master be responsible

Question 5

The meaning of vicarious liability

Qui facit per alium facit per se

Must be able to explain this term (in my own words/give examples)

Answer 5

A person who does something through the actions of another is liable as if he has done it himself

Question 6

Employers defences against vicarious liability (2 defences)

Answer 6

1) Contributory negligence (eg can argue that an individual had engaged in contributory negligence by not wearing appropriate safety equipment)

2) Volenti non fit injuria- to a person who is willing no injury is done
(Eg in a situation where individuals have engaged in reckless behaviour. The employer cant be liable for the individual’s behaviour)

Question 7

Employers defences of vicarious liability

Answer 7

Acceptance of risk may absolve the employer of any liability. If the employee is willing and accepted the risk then the employer may not be held liable.

Question 8

It is not always clear whether a person is employed or self-employed.

To differentiate this what are the two types of contracts

Answer 8

1) A contract of service (Employed)

2) A contract for services (Self-employed)

Question 9

A contract of services is for

Answer 9

Employed individuals

The employer has a duty of care and can be sued for vicarious liability by the employee in certain situations.

Question 10

A contract for services is for

Answer 10

Self-employed individuals

Question 11

How to differentiate if an individual is employed OR self-employed?

The Control of the employer

Answer 11

Ways an employer can control an employee includes:

• Contracts
• Codes of conduct
• Training
• Job role
• Uniforms
• Working hours (shifts)
• Performance measurement

These are all determined by the employer.

Question 12

How to differentiate if an individual is employed OR self-employed?

Questions to ask

Answer 12

Can the employee be controlled?
AND

Are they Integrated (or not) into the system: 
Eg what equipment do they use 
What financial risk is taken 
Does the individual employ others
Are there management tasks
Who do the customers speak to ECT

Question 13

If there is no control or no integration then individual is self-employed

Question 14

If employment does not exist (the individual is self-employed) then there is no vicarious liability

Question 15

Scope of employment Guidelines

Kirby v NCB (1958) provides guidelines to determine whether an employee was acting within the scope of his/her employment

Answer 15

In this case, it was established that

1) Kirby was an employee
2) But was not working within the scope of employment (was on a break)

Therefore could not claim vicarious liability against the employer

Question 16

Two issues need to be proven to successfully sue for vicarious liability against the employer.

Answer 16

1) You are an employee

2) Need to acting within the scope of employment

Question 17

Scope of employment Guidelines

Kirby v NCB (1958) case provides 4 guidelines to determine if there is a scope of employment

Answer 17

1) if the employer authorised the work, then the employer is responsible for it.
2) Even when the employee does authorised work in an unauthorised way, the employer remains liable
3) Where the employee has committed a delict when doing unauthorised work, the courts may decide that the employer is vicariously liable where the employee is considered to be acting in the employer’s interest.
4) If the employee uses the employer’s equipment for his/hers own purposes then the employer is not liable (only guideline to show there is not a scope of employment)

Question 18

The common law duties of an EMPLOYER (5 duties)

Answer 18

• Pay wages
• Generally, no duty to provide work when paying employee
• Employee indemnity
• To show employees trust and respect
• To take reasonable care for employee safety

Question 19

Common law duties of an EMPLOYER

What is employee indemnity (vicarious liability)?

Answer 19

This looks at when the employer adopts the liability on behalf of the employee.

The employer has a common law duty to indemnify employees against all losses and liabilities they incur when carrying out the employer’s instructions properly.

Question 20

Common law duties of an EMPLOYER

No duty to provide work (however there’s 3 exceptions to this)

Answer 20

Under common law, an employer has no general obligation to provide employees with work as long as they are being paid.

However, there are exceptions to this:

1) Where the employee requires to be working in order to receive sufficient exposure to enhance his/her reputation (Eg A footballer)
2) The employee is paid on a ‘piece work’ or commission basis (EG fruit picker)
3) The employer is bound to provide work.

Question 21

Health & Safety at work (4 duties of the employer)

Answer 21

Competent fellow employees (make sure everyone is trained to a high standard)

Adequate equipment and materials

Safe working systems

A safe place of work

Question 22

Health & Safety

Competent fellow employees

Answer 22

The employer has a duty to take reasonable care in selecting safe and competent employees.

The relevant case law:
Hudson V Ridge Manufacturing Co (1957)
Smith v Crosslet Bros (1951)

Both of these cases look at silly behaviour in the work place. In Hudson’s case, the employer was liable because this situation had taken place before and the employer was aware of this. Whereas in Smiths case this prank had never been done before meaning that the employer was not vicariously liable.

Do the employers know about this behaviour if not then they are not vicariously liable.

Question 23

Health & Safety

Safe working systems

Answer 23

The company (and any director or other officer) who consents to or is responsible for the commission of the offence may be liable to an unlimited fine and up to two years’ imprisonment.

Question 24

Common law duties of an employee (4 duties)

Answer 24

• To provide a personal service
• To provide a loyal service
• To obey lawful and reasonable orders
• To take reasonable care in the exercise of his/her employment

Question 25

Duties of an employee

To provide personal service

Answer 25

Important to think about the distinction contract of service and contract for service. (this is to establish the level of control between the employee & employer)

An individual with a contract of service is an employee, those with a contract for service is considered as self employed.

Question 26

Duties of an employee

To provide a loyal service

Answer 26

The relationship between the employee and the employer is a fiduciary relationship

• there must be no inconsistency with the duty of fidelity
• the employee must not make secret profits
• an employee should act with honesty and integrity
• an employee must not disclose confidential information

Question 27

Legislation surrounding employment law

Will focus on two legislations

Answer 27

1) Employment Rights Act 1996

2) Working Time Regulations 1998

Question 28

Employment Rights Act 1996

Answer 28

• Employment contract - written, verbal or implied.
• Rules of offer and acceptance apply.
• Within 2 months, employees must be issued with written statement of terms and conditions

Terms and conditions will include:

• Names
• Wages
• Working hours etc

-Minimum period of notice – at least one week

Question 29

Employment Rights Act 1996

No statement of terms & conditions

Answer 29

If no statement of terms and conditions, the employee can take employer to an industrial tribunal and up to 4 weeks wages can be paid in compensation. If dismissed because a request was made for written statement then this will be automatically unfair.

Question 30

The Working Time Regulations 1998

Answer 30

• An employee can’t be forced to work more than 48 hours per week (8 hours in 24 for 6 days)
• There should be at least 11 hrs rest per day and one day off per week
• There should be an “in-work” rest break if working day is greater than 6 hrs
• There should be 5.6 weeks paid leave per year
• Night workers should receive free health assessments