Vicarious liability

Vicarious liability

Where the employer is liable for the negligence of employees. Two conditions must be proved.

First condition?

The worker must prove they are an employee and not an independent contractor. Two tests must be proved.

Employee first test?

The control test- Collins v Hertfordshire council. The worker is an employee if the employer can order what is to be done, how it shall be done and if they have the power to dismiss them.

Employee second test?

The multiple test- Ready Mix Concrete v Minister of Pensions- the following factors are important when establishing whether an employee is an independent contractor or not:

1) whether a wage is being pad, tax or national insurance.

2) who supplies the tools/equipment?

3) whether the worker has to obey orders.

4) the exercise of control over how the work is being done.

5) the acceptance of any business risk.

6) the power to hire/fire assistants or replacements.

Exam tip- state them all and apply as many of them as possible.

The second condition?

Secondly, it must be established whether the employee was acting in the course of employment. This means they were doing what they were supposed to do.

Inside the scope of employment?

An employer will be liable, even if the employee was acting excessively (Vasey), negligently (Centuries insurance) or in an unauthorised way (Rose v Plenty).

SR- Outside the scope of employment?

SR- if the employee is doing activities that have no relevance to the job they are employed to do, the employer will not be liable (Heasemans v Clarity Cleaning).

SR- If the employee is on a frolic of their own, meaning doing something for their benefit only, the employer is not responsible (Storey v Ashton).

SR- travelling to and from work isn’t usually in the course of employment, however the employer may be liable if the employee is being paid to travel or is given travel expenses (Smith v Stages).