business law index

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ltltlt business law index
Introduction to Employment Law
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Legislation
Employment Right Act 1996
Equal Pay Act 1975
Sex discrimination Act 1975
Occupiers Liability Act 1957
Occupiers Liability Act 1984
Contract Laws
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Vicarious Liabiliy
One person can be held legally liable for torts
committed by someone else, known as Vicarious
Liability.
Vicarious Liability arises when there is a
relationship between the tortfeasor and the party
who became Vicarious Liable.
In modern law this relationship normally is
between an employee and an employer.
4
Who is an employee?
The courts have over the years developed a number
of different tests for deciding whether a
particular individual is an employee or not!
The courts now accept that no single test could
cover the variety of work situations, and instead
look at all the circumstances of the particular
case, including the level of control.
5
Ready Mixed Concrete Ltd v Minister of pensions
(1968)
It was stated that a person should be considered
an employee if the following three criteria were
satisfied
First, that that person agrees to provide work
and skill for the employer in return for payment.
Secondary, that he or she agrees (expressly or by
implication) to be subject to the employers
control.
Third, that the other terms of the contract are
consistent with the existence of a contract of
service.
Another factor frequently taken into account is
who owns the tools and equipment used to do the
job. Independent contractors are likely to own
their own.
6
Agency workers
Montgomery v Johnson Underwood Ltd (2001)
Mrs. Montogomery, was registered with the
defendant employment agency. They assigned her to
a firm called Orenstein and Kopple, and she
worked there as a telephonist for two and a half
year. Orenstein and Kopple then decided to get
rid of her and asked Johnson Underwood to end her
assignment with them, which they did, offering
her an other assignment with a deferent firm. She
declined this and instead she sued both companies
for unfair dismissal.
7
Montgomery v Johnson Underwood Ltd (2001)
The employment tribunal found that there was
clearly no basis for finding that she was
employed by Orenstein and Kopple, but held that
she was employed by John Underwood.
Johnson Underwood appealed against this finding,
and the court of appeal agreed. Applying the
traditional control test, they held that
Johnson Underwood had no degree of control over
Mrs. Montgomerys work, and could not therefore
be considered her employer.
8
Contractual Terms
The court may find that a person is an employee
even in the face of an express contractual term
describing them as self-employed.
In the case Ferguson v Dawson (1976), it was held
by the Court of Appeal that a building labourer
was an employee and therefore protected by
certain safety legislation, on the bases of the
type of work done and the degree of control
exercised over it.
This was despite a specific contractual term
stating he was self-employed.
9
The loan of an employee
In some cases one employer may lend another the
services of an employer. If an employer who is on
loan committed a tort, who will incur vicarious
liability for it?
10
Mersey Docks and Harbour v Coggins Griffiths
Ltd (1947)
The Harbour had hired out one of their crane
drivers, with his crane, to Coggins, a company of
stevedores. As a result of the crane drivers
negligence someone was injured, and it was
necessary to decide who was the crane drivers
employer ( and therefore who was vicariously
liable.) According to the terms of the contract
between Harbour Board and Coggins, he was
employee of Coggins but the Harbour Board paid
his wages and retained the power to sack him.
11
The House of Lords held that it meant that the
Harbour Board was his employer, and in doing so,
they laid down three principles to be used in
deciding future cases
The terms of any contract between the two
potential employers are not decisive.
The permanent employer is presumed liable, unless
they can prove otherwise.
Where employees alone are lent it is easy to
infer that the hirer is the employer. If
equipment as well as the employee is hired then
this will be less so easy to infer as the hirer
may not have control over the way the equipment
is used.
On the facts of this case, the Harbour Board had
failed to rebut the presumption, and remained the
drivers employer for the purposes of vicarious
liability.
12
In the course of employment
An employer will only be responsible for torts
committed by their employees if those torts are
committed in the course of the employment, rather
than, as the courts have put is, when the
employer is on a frolic of his own.
13
Salmond on Torts
The traditional test for whether an act is
committed in the course of employment was taken
from the classic textbook on tort, Salmond on
Torts, first published in 1907. Salmond stated
that a wrongful act could be classified a done in
the course of employment
The traditional test for whether an act is
committed in the course of employment was taken
from the classic textbook on tort, Salmond on
Torts, first published in 1907. Salmond stated
that a wrongful act could be classified a done in
the course of employment
if it either (a) a wrongful act authorised by
the master (the old-fashioned legal for the
employer) or (b) a wrongful and unauthorised mode
of doing some act authorised by the master
14
This mean that the employer will be liable not
only where they have permitted the employee to do
the wrongful act, but also in some cases where
they have not give such permission.
15
Century Isurance v Northern Ireland Road
Transport (1942)
The defendants employee, a petrol tanker driver,
was unloading petrol from his tanker to
underground storage in the claimants garage,
when he struck a match to light a cigarette and
then dropped the lighted match on the
ground. This caused an explosion, damaging the
claimants property.
16
The defendants were found to be vicarious liable
for his negligence, on the bases, that what he
was doing at the time was a part of his job, even
he was doing it in a negligence way. It was
agreed that the match was struck for his own
purposes, not those of the employer, but
nevertheless, in the circumstances in which it
was done it was still in the course of his
employment
17
Express prohibition
An employer who expressly prohibits an act will
not be liable if an employee commits that
act. The employer may be liable if the
prohibition can be regarded as applying to the
way in which the job is done, rather than the
scope of the job itself.
18
Limpus v London General Omnibus Co (1862)
A bus driver had been given written instructions
not to race with or obstruct other buses. He
disobeyed this order and while racing an other
bus, he caused a collision with the claimants
bus, which damaged it.
The court held that he was doing an act which he
was authorized to do driving a bus in such a way
as to promote the defendants business. This
meant that he was within the course of his
employment, even though the way he was doing the
job was quit improper and had been prohibited.
19
Criminal Acts
Talking about vicarious liability for criminal
acts committed by employee, it does not mean that
the employer is prosecuted for the crime instead
of the employee. The employer might have
vicarious liability but the employee will be
prosecuted for the crime by the state.
20
Lister v Hesley Hall (2001)
The claimants in this case were boys at a school
for children with emotional difficulties, who had
been sexually abused by the warden, and employee
of the defendants. They claimed that the
defendant were vicarious liable for the
abuse. Clearly the abuse could not be described
as the warden merely doing his job in an
unauthorized way, as stated in the Salmond test,
but the House of Lords departed from this
approach, saying that the basic Salmond test did
not actually work very well in cases where the
wrongdoing was intentional rater than careless.
They referred instead to a phrase used by
Salmond in explanation of the test, that a
master is liable for acts which he has
authorised, provided that they are so connected
with acts which he has authorised, that they may
rightly be regarded as modes albeit improper
modes of doing them
21
The key element here, according to the House of
Lords, was the phrase so connected, and the
question to ask whether the connection between
what the employer had done, and what he was
supposed to do as his job, was so close that it
would be fair to impose vicarious liability.
It was necessary to look at the task an employer
had delegated to their employee. In case, the
school had the job of looking after the boys in
its care, and it had delegated part of this task
to the warden.
The sexual abuse had been inextricably
interwoven with is performing this task, since
it carried out on the defendants time, on their
premises, and during the day-to-day routine of
looking after the children
22
'Frolics of their own'
An employer will not be responsible for Act done
by the employee which have nothing to do with
their employment judges often refer to this as
employees going off on frolics of their own.
In many cases the employees job gave them the
opportunity to commit wrongful acts - they may do
so during working time or using the employers
equipment.
23
Heasmans v Clarity Cleaning Co (1987)
The employee of a cleaning contractor was
employed to clean telephones, and while doing so,
used the phones to make private long distance
calls from clients premises.
The defendants were held not vicarious liable
the Court of Appeal held that the unauthorized
use of the telephone was not connected with
cleaning it, and could not be regarded as the
cleaning of it in an unauthorized manner.
24
Whatman v Pearson (1868)
The employee had an hour lunch break when he was
forbidden to go home or to leave his horse and
cart unguarded. Despite the ban, he went home for
lunch, which was a quarter of an hour away from
his workplace. While having his lunch he left his
horse in the street and it ran off, damaging the
claimants property.
The employee was found to be acting in the course
of his employment, ad he was still within the
general scope of his job, which included guarding
the horse and cart all day.
25
Employer's indemnity
Vicarious liability makes employer and employee
joint tortfeasors , each fully liable to the
claimant, an employer who is sued on the basis of
Vicarious liability is entitled to sue the
employee in turn, and recover some or all of the
damages paid for the employees tort.
This is called an indemnity and the employers
entitlement to sue may derive either from the
provisions of the Civil Liability (Contribution)
Act 1978, or in common law.
26
Lister v Romford Ice and Cold Storage (1957)
A lorry driver drove negligently in the course of
his employment, and ran over his farther, who was
employed by the company. The farther recovered
damages on the basis of the employers vicarious
liability for the drivers negligence the damages
was paid by the employers insurers. The employer
then exercised its right to sue the driver for an
indemnity
The House of Lords held that the drivers
negligent driving was not only a tort against his
farther, but also a breach of an implied term in
his employment contract, to the effect that he
would exercise reasonable care in performing his
contractual duties. It was decided that the
employer was entitled to damages equivalent to
the amount which it had had to pay to the farther
27
Independent contractors
An employer is generally not liable for the act
of an independent contractor, as opposed to an
employee. There are circumstances in which the
acts of an independent contractor may give rise
to the employer having primary liability, because
the employer was breaching their own duty to the
claimant.
28
In Padury v Holliday and Greenwood Ltd.
Sub-contractors were employed by the defendant to
do work on the windows of a house the defendants
were building. While doing this, the
sub-contractor placed on the window sill an iron
tool, which subsequently fell of and injured the
claimant in the street below.
29
Vicarious liability will only arise if two
conditions are satisfied
The relationship between the worker and the
person from whom they the work was done was that
of employer and employee
The relationship between the worker and the
person from whom they the work was done was that
of employer and employee The employer committed
the tort during the course of his employment.
30
When is an employer acting in the couse of his
employment?
An employee will be acting in the course of his
employment when he is doing what he is expressly
or impliedly authorised to do!
If an employee is authorised to do an act
properly then the employer will be liable if the
employee performs the act negligently!
If an employee is authorised to do an act
properly then the employer will be liable if the
employee performs the act negligently!
If an employee commits the tort while doing some
act which is designed to help the employer then
the employer will be liable!
31
Vicarious Liability - Tort
Vicarious liability obviously conflict with a
basic principle of tort, that wrongdoers should
be liable for their own actions. Why then do we
have it? Various explanations have been put
forward, including the following
32
Control of employees
Benefits to employers
Resources
Preventing negligent recruitment
Promotion of care
33
Employment Right Act 1996
Part I Employment particulars
Part II Protection of wages
Part III Guarantee payments
Part IV Sunday working for shop and betting
workers
Part V Protection from suffering detriment in
employment
Part VI Time off work
Part VII Suspension from work
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Part VIII Maternity rights
Part IX Termination of employment
Part X Unfair dismissal
35
Sex Discrimination Act 1975
Part I Discrimination to Which Act
Applies 1. Direct and indirect discrimination
against women 2. Sex discrimination against
men 2A.Discrimination on the grounds of
gender reassignment. 3. Direct and
indirect discrimination against married
persons in employment field 4. Discrimination
by way of victimisation 5. Interpretation
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Part II Discrimination in the Employment
Field Discrimination by employers Discriminati
on by other bodies Special cases
Part III Discrimination in Other
Fields Education Goods, facilities, services
and premises Barristers Advocates
Part IV Other Unlawful Acts Discriminatory
practices Discriminatory advertisements Instru
ctions to discriminate Pressure to
discriminate Liability of employers and
principals Aiding unlawful acts
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Part V General Exceptions from Parts II to
IV Selection of candidates Charities Sport
etc Insurance etc Communal
accommodation Discriminatory training by
certain bodies Other discriminatory training
etc Trade unions etc. elective
bodies Indirect access to benefits etc Acts
done for purposes of protection of women Acts
done under statutory authority to be exempt
from certain provisions of Part III Acts
safeguarding national security Construction of
references to vocational training
38
Porcelli v Strathclyde Regional Council (1986)
ICR 564
Some male co-workers at Strathclyde Regional
Council made sexually abusive comments to a Ms
Porcelli. Employers are under a duty of care for
their employees, so the law deems them to be
vicariously liable for the other workers. Ms
Porcelli sued the council for sexual
discrimination. The council argued that really,
the comments were not about sex discrimination,
and although they used certain sexually charged
terms, really it was just general abuse because
they did not like her.
39
Lord Emmerslie held that even though the abuse
was motivated by not liking her rather than being
sexist, it was still different treatment on
grounds of sex (this was before a self standing
harassment provision). The sexual language was a
"sexual sword", and therefore had to be included
in the scope of the provisions combatting sex
discrimination.
40
Weathersfield Ltd v Sargeant (1999) IRLR 94
Mrs Sargeant got a job at Weathersfield, a care
hire company. She was told, "we do have a special
policy regarding coloured and Asians. We have got
to be careful who we hire the vehicles to. If you
get a telephone call from any coloured or Asians
you can usually tell them by the sound of their
voice. You have to tell them that there are no
vehicles available." She was appalled, and she
resigned. She claimed constructive unfair
dismissal for race discrimination. The question
was, although she was not herself black, was the
treatment she has on grounds of race?
41
It was held that she could claim. In the Race
Relations Act 1976 it says, "A person
discriminates against another in any
circumstances relevant for the purposes of any
provision of this Act if (a) on racial grounds he
treats that other less favourably than he treats
or would treat other persons". Although Mrs
Sargeant was not herself coloured or Asian, the
foul conduct of the employer was still "on racial
grounds".
42
Equal Pay Act 1970
An Act to prevent discrimination, as regards
terms and conditions of employment, between men
and women