Tort - EPL / Vicarious Liability

Question 1

Employers’ primary liability

Answer 1

where an employee sues their employer for breaching their duty of care that they owed the employee

Question 2

best advice to give to an employer to limit their liability for a specific reckless activity undertaken by her employees?

Answer 2

The client should formally prohibit the specific activity but be made aware that it will not prevent liability arising should the specified activity cause injury in the future

Question 3

where one employee injures a fellow employee, what lawsuits are likely?

Answer 3

an action against the employee who caused the harm and;

the employer being vicariously liable

Question 4

Does the employer’s duty extend to third-party premises?

Answer 4

Yes

Question 5

What extent can employers be expected to go to to ensure safety of third-party premises?

Answer 5

Employers are under a duty to go to the site of work, assess the risks, and plan and organise a safe system for doing the work so as to minimise the risk of injury

Question 6

When will an employer be liable for “harmful stress”?

Answer 6

An employer will be liable for harmful stress caused at work if that stress was REASONABLY FORESEEABLE, i.e. if:
The work is stressful/demanding
and/or there are signs that the employee is suffering from stress that the employer knows/ought to know about

Question 7

Occupational stress claims - Hatton guidelines

Answer 7

Employers are (under the Hatton Guidelines) entitled to take what an employee tells them at face value eg if they say they can handle their workload and are not stressed

Question 8

Duty on the employer

Answer 8

to take reasonable care (objective test) although an employer should take into account an employee’s personal characteristics

Question 9

Can contributory negligence be argued in an EPL context?

Answer 9

Yes, if the claimant employee has failed to take reasonable care of their own safety and this failure contributes to the loss suffered

Question 10

Vicarious liability

Answer 10

where the claimant sues an employer for a tort committed by one of the employers’ employees

Question 11

Parties involved in a vicarious liability claim

Answer 11

3 parties - the victim who has suffered harm, the employee that caused that harm, and the employer who might be vicariously liable for the harm caused by its employee

Question 12

An employer is not responsible for the wrongful acts of the employee unless such acts are done in the

Answer 12

course of employment - if there is a sufficiently close connection between the employee’s tort and the role he/she is employed to do

Question 13

Examples where it does constitute ‘in the course of employment’

Answer 13

if tort committed during lunch break, doing an authorised act in an unauthorised manner, if they were travelling at the time - consider whether they were going about their employer’s business at the material time

Question 14

What does NOT constitute in the course of employment?

Answer 14

doing a personal errand or a prohibited act during working hours

Question 15

2-stage test for vicarious liability (Mohamud v Morrisons)

Answer 15

What function 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 16

To what extent does travel on the job affect vicarious liability?

Answer 16

the extent of the deviation, whether travelling was in working time and the actual purpose of the journey. Will not be vicariously liable if the deviation is a new and independent journey, entirely for their own purpose.
An employer will not normally be vicariously liable for a tortious act carried out by an employee whilst travelling to work, especially if they deviate from their regular work pattern.

Question 17

UKSC factors to determine whether there is a relationship of employment such that it is fair, just and reasonable to impose a duty of care

Answer 17

(1) employer is more likely to have means to compensate the victim than the employee and are likely to be insured;
(2) tort committed as a result of activity being taken by the employee for the employer (furthers their business);
(3) employee’s activity is likely to be part of employer’s business activity;
(4) employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee;
(5) employee will be (more or less) controlled by the employer

Question 18

The employer’s indemnity

Answer 18

an employer may be entitled to seek an indemnity from their employee should they be forced to pay damages in respect of the employee’s tort

Question 19

If it is not clear cut whether the tortfeasor (Party A) is Party B’s employee, which test can you apply?

Answer 19

The ‘multiple factors’ or ‘economic reality’ test

Question 20

Remuneration in exchange for service factor

Answer 20

If a worker has an unfettered right to send a substitute to do the work in their place (and the employer has no role in choosing that substitute), this cannot be an employment relationship.

Zero hours contracts unlikely to satisfy employer/employee relationship.

Question 21

Control factor

Answer 21

The more control that the employer has, the more likely it will be that the other party is an employee

Question 22

Other factors that may indicate employer/employee relationship (or akin to)

Answer 22

Tools and equipment being provided by the employer;
Tax / PAYE treatment as an employee rather than an independent contractor;
The employee being ‘integrated’ into the organisation;
Labelling the relationship as an employment relationship; and
Receiving benefits such as holiday pay and sick pay

Question 23

The integration test

Answer 23

If the worker is an integral part of the employer’s operations and is closely connected to its core activities, it indicates an employment relationship vs. if the worker is providing a separate and distinct service that is not essential to the employer’s core operations, it suggests an independent contractor arrangement.

Question 24

Test for relationship akin to employment (Barclays Bank Plc)

Answer 24

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

Question 25

Relationships which are NOT ‘akin to employment’

Answer 25

Someone who is clearly carrying on their own independent business

Question 26

employer's vicarious liability in "frolic cases"

Answer 26

The greater the degree of departure from the route or the task set, the more likely it is that an employee will be ‘on a frolic of their own’ and the employer will not be vicariously liable

Question 27

General rule for lending employees

Answer 27

the original employer remains liable (difficult to rebut this presumption) - Ask - which employer had control over the tortfeasor at the time of the tort?

Question 28

Dual liability (Viasystems Ltd v Thermal Transfer Ltd)

Answer 28

Dual liability might occur where an employee is lent to work for another employer and both employers have an equal measure of control over the tortfeasor

Question 29

Even if a tortfeasor is unlikely to be deemed an employee via Ready Mixed Concrete v Ministry of Pensions, they may be deemed to be in a relationship

Answer 29

akin to employment with the employer (Barclays Bank), meaning vicarious liability can be estd.

Question 30

Will an employer be liable if they fail to ensure that workers use safety equipment?

Answer 30

Yes - The question of whether insistence on using safety equipment provided should be resorted to depends on the nature and risk of harm liable to occur if the equipment is not worn. Where the nature and risk of harm is serious, insistence on using safety equipment is an appropriate expectation. If a foreman/manager allows an employee to work without safety equipment, the employer has arguably failed to provide safe and competent employees.

Question 31

Relationships which are NOT ‘akin to employment’

Answer 31

Someone who is clearly carrying on their own independent business

Question 32

What is the current legal test for establishing whether or not a tort was committed in the course of employment?

Answer 32

the close connection test

Question 33

employers cannot be held to be vicariously liable for the acts of

Answer 33

independent contractors

Question 34

Employer's indemnity in vicarious liability cases against the employee responsible

Answer 34

the employer has a right at common law to claim an indemnity (ie its full loss) from the employee who actually committed the tort