Vicarious Liability

• Vicarious Liability


  Where the employer is responsible for the torts/crimes of their employees.
• Tests used to decide whether a person is an employee:

  ·       Control Test (Hawley).

  ·       Integration Test.

  ·       Economic Reality Test (Ready Mixed Concrete).

  ·       Akin to Employment Test (Cox).

  ·       Christian Brothers criteria can be used where the above tests are inconclusive. 
• ·       Control Test (Hawley). 


  Did the employer have control over the employee?
• ·       Integration Test.


  Is the employee fully integrated into the business?
• ·       Economic Reality Test (Ready Mixed Concrete). 


  Look at a range of things such as where there is a contract of employment and whether there are deductions for tax etc.
• ·       Akin to Employment Test (Cox). 


  Where the relationship is similar to employer and employee.
• ·       Christian Brothers criteria can be used where the above tests are inconclusive.  


  Was the employer in control of the work done and did this create the risk of the tort/crime being committed? Was it fair just and reasonable to make the employer responsible?
• Was the tort committed in the course of the employment?

  Examples of in the course of employment include:

  ·       Doing job but not following instructions (Rose v Plenty)

  ·       Doing job negligently (Century)
• Examples of not doing job in course of employment include:

  ·       Employee on a frolic of one’s own (Hilton)

  ·       Unauthorised lifts (Twine)

  ·       Employee playing a practical joke (Chell)
• If the employee has committed a crime the test to use is the ‘close connection’ test where the employer will be liable only if there is a close connection with the crime committed and their job:


  ·       Mohamud v Morrisons.  Close connection with job when they assaulted a customer.

  Morrisons Supermarkets. No close connection with job when they leaked data.
• ·       Barclays Bank

  employers are not responsible for independent contractors.
• ·       Ready Mixed Concrete

  economic reality test most often used traditional test.
• ·       Cox

  akin to employment test applied where not an employee under the 3 traditional tests.
• ·       Christian Bros.

  used where not an employee under the other tests.
• ·       Rose v Plenty

  acting in course of employment includes employees not following instructions but the employer benefits from the work.
• ·       Hilton

  employees off doing their own things will be not be acting in the course of the employment.
• ·       Mohamud v Morrisons 


  where there is a close connection with the job being done and the crime committed there will be vicarious liability.
• ·       Chell 


  no vicarious liability where employee played a practical joke on a contractor as the employer had training in place to prevent this behaviour.