- Employer may have had greater degree of control
- Employer may have been careless selecting staff
- Employer usually better able to stand loss to compensate victim
- Can make conduct of case easier in terms of identifying specific negligence
- Was the person an employee?
- Did they commit tort 'in the course of employment?'
- Was the act or omission a tort?
Tests of employment
- Control test - oldest test based on master/servant laws and level of control master had over servant. very difficult in modern setting - Mersey Docks
- Integration - how integrated a persons work is to the business e.g. teacher would be integrated, freelance writer wouldn't be. doesn't reflect modern situations
Multiple test- takes into account more than one factor.
- Employee agree to provide work in return for wage
- Employee expressly of impliedly accepts work will be subject to control of employer
- All other considerations of contract consistent with employment
Ready Mixed Concrete
- ownership of equipment - employee less likely to own equipment
- method of payment - employee likely to be paid wage
- tax and NI contributions - employee usually has them deducted by employer
- self-description - person may describe themselves as self-employed
- level of independance - self-employed can choose own work
Casual workers - O'Kelly - wine butlers not employees as only provided work when needed
Agency staff not seen as employees of agency - Wickens v Champion Employment - agency workers not employees as agency under no obigation to provide work
Outworkers - Nethermere - workers in garment industry held to be employees as were doing same work as employees in factory, only at home
In the course
Authorised Acts - employer liable for acts they have expressly authorised...
Poland v Parr - employee assaulted boy trying to steal lorry, employee vicariously liable as employee would be expected to actively try to prevent theft.
Authorised Acts in Unauthorised Manner...
Expressly prohibited acts - Limpus - bus drivers told not to race but did and injured passengers - employer liable
Employee working negligently - Century Insurance Co - driver of petrol tanker caused explosion by throwing lighted match, employer liable
Unauthorised lifts - Rose v Plenty - milkman continued used boy as helper despite being told not to then boy was injured. employer liable
Torts not in
Expressly prohibited act - Beard v London General Omnibus - bus conductor drove bus depsite express orders not to and injured C. employers not liable.
When employee on 'frolic of own' - Hilton v Thomas Burton - workmen took unauthorised break and when van crashed killing someone, employers not liable as workment on 'frolic'
Authorised lifts - Twine - hitch hiker injured through negligence of driver forbidden to give lifts, employers not liable - didn't gain benefit like in Rose v Plenty
Acts exceeding boundaries of work - Makanjula - polive officer bribed illegal immigrant with sex in return for not reporting her to authorities, employer not liable
Employer won't be liable for crimes of employee that also amount to tort - Warren v Henleys - petrol pump assistant assaulted customer who believed wasn't going to pay, employer not liable