Term
|
Definition
- Who is an employee?
- Has a tort been committed by the employee?
- Was the act in the course of employment?
- Does the employer have indemnity? |
|
|
Term
Test for Employment:
Control Test |
|
Definition
Yewen v Noakes (1880)
The employer has the right to control the nature of the work done as well as the way in which it is carried out |
|
|
Term
Test for Employment:
Economic Reality Test |
|
Definition
Ready mixed Concrete Ltd v Minister of Pensions
3 conditions for "employment"
- Employee must provide work or skill in return for wages
- Employee agrees (Expr. or Impl.) that they work under employer's control
- All other circumstances are consistent with a contract of employment |
|
|
Term
Test for employment:
Economic Reality - other circumstances |
|
Definition
- Method of payment
- Tax and NI payments
- Regularity of Hours
- Provision of Equipment
- Level of independence |
|
|
Term
|
Definition
| A party cannot be vicariously liable without primary liability. Discuss the liability of the employee. |
|
|
Term
|
Definition
Employers may always be held liable for acts that their employees perform during the course of employment.
Any acts unrelated to the employee's work are called a "frolic of his own" (Joel v Morrison (1834)) |
|
|
Term
"Course of Employment":
Authorised Acts |
|
Definition
| Obvious: If an authorised act is carried out in an unauthorised manner, then the employer may be vicariously liable. |
|
|
Term
"Course of Employment":
Authorised acts in an unauthorised manner |
|
Definition
| An employer may be liable for an employee's acts if they are authorised but carried out in an unauthorised manner. (Century Insurance v NI Road Transport Board [1942]) |
|
|
Term
"Course of Employment":
Express prohibitions |
|
Definition
Where employer has made prohibitions as to the scope of activities, they will not be liable for being disobeyed (Iqbal v London Transport Executive)
Prohibitions as to MANNER do not absolve employer (London CC v Cattermoles (Garages) Ltd) |
|
|
Term
"Course of Employment":
Unlawful Acts |
|
Definition
Lister and Others v Helsey Hall Ltd [2002]:
Closeness of connection test. If there is a close connection between the unlawful act and employee's duties, then employer may be liable. |
|
|
Term
|
Definition
| As employer and employee are joint tortfeasors, the employer may recover some of the damages he had to pay from the employee. |
|
|
Term
Employer's Indemnity:
Civil Liability (Contributions) Act 1978 |
|
Definition
| s.1(1) allows a defendant who has paid damages to a claimant to recover a contribution from from any other responsible defendant. |
|
|
Term
Employer's Indemnity:
Common law indemnity |
|
Definition
Lister v Romford Ice & Cold Storage Co Ltd. An employer may regain full cost of damages from an employee if the damage was as a result of breach of contract.
Jones v Manchester Corp.: Only open to an employer who had nothing to do with damage. |
|
|
Term
Test for employment:
Economic Reality - exception |
|
Definition
| If the parties have specified that a person is self- employed, and the terms of the contract reflect this, then they will be held independent contractors. (O'Kelly v Trusthouse Forte plc [1983]) |
|
|
Term
Test for Employment:
Lending employees |
|
Definition
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd.)
3 principles to determine if employer or hirer is liable:
- A term in the contract between Er an Hr is indecisive
- Burden of proof is on Er to show that Hr was technical employer
- Labour only > easier to hold Hr as employer. Labour and plant > more difficult to rebut. |
|
|
