Employment law and Vicarious liability Flashcards
What is vicarious liability?
Give an example
Where 1 person is liable for the torts of another
An employer is vicariously liable for torts committed by their employee while performing their work
Why would an injured person sue the employer rather than the employee?
The employer must have insurance to pay for damages
What are the 2 conditions that must be satisfied for vicarious liability to arise?
- Employer-employee relationship (or similar)
2. During the course of employment
Give a case law example of vicarious liability
Briefly explain the case
Cox v Ministry of Justice (2016)
C managed a prison kitchen.
A prisoner negligently dropped a bag of rice on C’s back, causing injury.
C sued D as they were vicariously liable for the prisoner’s acts.
Held:
D were liable.
(Despite absence of traditional employer-employee relationship)
- Tort was committed as a result of the prisoner’s activity on behalf of D.
- Prisoner’s activity was likely to be part of D’s business activity
- D will have created the risk of tort committed by the prisoner by employing them.
What is the difference between a contract of service and a contract for service?
Contract of service = employee
Contract for service = self-employed
responsible for your own actions
What might imply that there is a contract of service?
Implications such as whether the employer deducts PAYE Income Tax and National Insurance are indicators, but not conclusive
What tests or factors might be used to establish whether there is a contract of service?
Control test
Organisation
Mutuality
What is the Control Test?
Was the person under the direction AND control of the party with regard to the manner in which the work was done?
What is meant by ‘organisation’ in establishing a contract of service?
When is this used?
The work done by the individual is an integral part of the employer’s business
In highly technical and professional situations
What is meant by ‘mutuality’ in establishing a contract of service?
There must be minimum mutual obligation:
> the engager must be obliged to pay a wage/ remuneration
AND
> the worker must be obliged to provide their work or skill
Give a case law example for establishing a contract of service
Briefly describe the case
Autoclenz v Belcher [2011]
C employed car valets.
D was a car valet and claimed they were entitled to minimum wage as they were workers, but C denied this.
The contract stated:
- no obligation for valets to work
- valets paid own tax and purchased own insurance, uniforms, materials etc
- valets were required from time to time
- could arrange for substitute to carry out tasks
Held:
D was employed by C, so they were entitled to backdated employment rights.
Due to the nature of the relationship between D and C
(D controlled what C did)
Why do we have vicarious liability?
- Employer must have insurance
- Employer is making profit, so should bear the losses
- Employer has authority over employee’s actions
- Encourages employer to promote health and safety
- Encourages employer to employ the right employee
Which 2 cases demonstrate a wrongful act being committed in the course of employment?
Jones v Tower Boot Company (1996)
Mohamud v Morrisons Supermarkets (2016)
Briefly describe Jones v Tower Boot Company (1996)
C was of mixed race and subjected to verbal and physical abuse from colleagues.
Held:
Acts carried out were in the course of employment.
Employers were vicariously liable.
Briefly describe Mohamud v Morrisons Supermarkets (2016)
C was at a petrol station when a staff member responded to his question aggressively and told him to leave.
The employee then assaulted him.
Held:
D were vicariously liable for their employee’s actions.
