The Courts Employment Law (Dissertation Sample)

Project
To what extent are the Courts prepared to find employer vicarious liable for the torts of an employee committed in the course of employment
Table of Contents
TOC \o "1-3" \h \z \u 1.0 Back ground PAGEREF _Toc383701364 \h 3
2.0 Aims and Objectives PAGEREF _Toc383701365 \h 4
3.0 Methods PAGEREF _Toc383701366 \h 4
4.0 Findings, Discussions and Analysis PAGEREF _Toc383701367 \h 5
4.1 Objective 1: To identify what makes an Individual Employee PAGEREF _Toc383701368 \h 5
A)The Control Test PAGEREF _Toc383701369 \h 6
B) The Economic Reality Test/ Entrepreneur Test PAGEREF _Toc383701370 \h 7
D. Lending an Employee PAGEREF _Toc383701371 \h 9
E. Description of the Relationship by the Parties PAGEREF _Toc383701372 \h 9
4.2 Objective 2 Identify What Constitutes the Course of Employment PAGEREF _Toc383701373 \h 10
A.Salmond’s Test PAGEREF _Toc383701374 \h 10
B)Circumstantial Evaluation PAGEREF _Toc383701375 \h 11
C)Detour Cases PAGEREF _Toc383701376 \h 12
Objective 3: To establish some mechanisms available for Employers to Defend Themselves PAGEREF _Toc383701377 \h 13
5.0Conclusion PAGEREF _Toc383701378 \h 14
Bibliography PAGEREF _Toc383701379 \h 16
Books PAGEREF _Toc383701380 \h 16
Cases PAGEREF _Toc383701381 \h 16
Legislation PAGEREF _Toc383701382 \h 17
1.0 Back ground
The doctrine of vicarious liability is a hallmark of English common law and is integral to both law of torts and employment law. Basically, vicarious liability is said to arise when that one person is held liable for torts committed by another person. Employers’ vicarious liability for torts of their employees is, arguably, the most common example of vicarious liability. Several justifications have been given as to why the employers are held vicariously liable for the tortious liability of their employees. Arlen and MacLeodassert that the employers generally exercise control over the activities and conduct of their employees, and thus should be answerable for acts of their employees (which, presumably, stood to be controlled by the employer). Jones provides even more elaborate justification for imposition of vicarious liability on employers. First, generally, the employers are wealthy and have access to resources though which they can settle the damages attributed to their employees, unlike their employees who are relatively poorer. Secondly, vicarious liability gives an employer a financial interest in the activities of the employee, and so employers will be inclined to take care of their employees to minimize damages to third party. This in turn fosters accident prevention. Lastly, the employers gain from the activities of their employees and on the same note should bear losses ensuing from their activities as long as the same is committed in line of duty. Whereas in most cases liabilities are in negligence, employer’s vicarious liabilities can also applied to any other tort, for example, the case Majrowski v Guy's and St Thomas’s NHS Trust where it was applied in relation to breach of statutory duty, where the employer was held liable as an employee harassment by others.[Simon Deakin, Angus Johnston, Basil Markesinis, Markesinis and Deakin's Tort Law (Oxford University Press, 2007) 665] [Jennifer Arlen and W. Bentley MacLeod, "Beyond Master-Servant: A Critique of Vicarious Liability" (January 2005). University of Southern California Law and Economics Working Paper Series. Working Paper 25.http://law.bepress.com/usclwps-lewps/art25] [Ibid] [Michael A Jones. Textbook on Torts (2000) 379] [[2006] UKHL 34.]
Basically, three essential requirements, outlined below, must be satisfied in order to find that if an employer can be held liable on the torts committed by his/her employee: (1). Relationship of employer and sub-contractor, or employee; (2). Commission of a tort by the employee (3). Tort commission by the employee in the course or scope of his employment.[Jones, 379]
Whereas there is a near unanimity that the three are the essential elements to be satisfied to hold an employer vicariously liable, the test for each of the three elements are nearly remains controversial among jurists and judges, as embodies on myriads of tests now available in relation to each of the components. This controversy remains unresolved making the debate on vicarious liability by employers debate remain a timeless topic. The primary aim of the study is to explore the extent to which the Courts prepared to find employer vicarious liable for the torts of an employee committed in the course of employment. The paper will, thus, form the basis of this research, with a view to meeting three objectives (below) related to elements of vicarious liability.
2.0 Aims and Objectives
Consistent with this the aim of the study, this study seeks to attain the following three objectives.
1. To identify what makes an individual employee.
2. To identify what constitutes the course of employment.
3. To establish mechanisms though which employers may defend themselves from vicarious liability claims.
3.0 Methods
To address the objectives of the study, which are essentially legal issues, this research solely relied on desk research to locate both primary and secondary sources of legal information. The term desk research is used as an antithesis of field research. While field research involve collection of raw data from people or objects, field research involve looking up information from existing publications and resources such as internet ,press, reports , data bases. In the legal context, the term primary sources of law refer to legal instruments and case laws which constitute sources of law and which have not been analyzed. Secondary sources, on the other hand refers to other publications that have collected/analyzed/recorded other sources of source of law, such as books, journal articles, reports among others. Thus, the desk research entailed the use of library, internet and electronic data bases to obtain both primary and secondary sources of law pertinent to the research question.[Sunny Crouch and Matthew Housden, Marketing research for managers; The Marketing Series; Chartered Institute of Marketing( Butterworth-Heinemann 2003) 22] [See Morris L Cohen and Kent C Olson, Legal research in a nutshell (Thomson, 2010)]
4.0 Findings, Discussions and Analysis
The study’s findings will be presented in the order of the research questions that the study sought to address.
4.1 Objective 1: To identify what makes an Individual Employee
Imposition of vicarious liability if an employer is founded on the nature of the relationship: that is, employer A will only be vicariously liable for person B is it is proved that B is an employee of A (B is in contract of service). Absence of this relationship, because B is n independent contractor (in in contract for service) will negate the basis for imposition of vicarious liability. While existence of employment contract is such crucial, in so far as it is a prerequisite to imposition of vicarious liability on an employer, there is no universally accepted test to ascertain the existence of employment status. Rather, the courts have, overtime, devised myriads of tests to ascertain the employee status for purposes of vicarious liability and other employment case claims. Key tests commonly cited in English employment laws include: the contra test, business integration test, the entrepreneur test, the economic reality test among others. Indeed it has been judicially acknowledged in both Market Investigations Ltd v Minister for Social Security and Wickens v Champion Employment Agency that there is no single test that is comprehensive as to cover all the possible instances and types of employment. With the increasing need for and incidences of workmanship outsourcing, the status of employees who are lent by employer C to another employer D has also become a contemporary issue and the courts have had to address these issues.[[1969] 2 QB 173 at 184] [[1984] ICR 365 at 369]
The Control Test
The locus classicus of this case is found in Yewen v Noakes, where Bramwell LJ conceived an employer-employee relationship as a master-servant relationship, which is to be tested by the following standard: "...a servant is a person who is subject to the command of his master as to the manner in which he shall do his work." The import of this test is that one will be an employee, as opposed to an independent contractor where the person gets directions (from the employer) not only what to do, but how to do it. This test was endorsed in Honeywill and Stein Ltd v Larkin Bros Ltdwhere Slesser LJ reiterated that where the work to be given is prescribed, but the doer retains actual control on how it is to be done, then the doer cannot be an employee, but can only be an independent contractor. Notably, the test was espoused in the 19th and took roots in early 20th century. This period was characterized by heavy bureaucracy (where employees’ role was do as directed by the employer) and generally lower level of specialization. It therefore aptly suited the situations of the time when it was formulated, and indeed for purposes of vicarious liability, one appreciates where the causal link exists between the employer and the harm- the employer dictates how work is to be done, and should therefore take responsibility for damage resulting from his/her directions/misdirection. However, with increasing specialization in the recent past, and changing work culture in favour of delegation and autonomy of roles, employers may not have skills or will to tell their employees how to do, they can only tell employees what to do. Thus, the test is gradually losing robustness that it earlier enjoyed and can no longer be the primary basis for determining employment relations.There are also a number of contrasts of serv...