Vicarious Liability

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  • Vicarious Liability
    • Requirements for vicarious liability
      • There must be an employer-employee relationship (no independent contractor)
        • Employment Rights Act 1996 - a person who is employed under a contract of employment - Not all employees fall under this bracket.
          • Tests to establish employment
            • Control test
              • Traditionally used to distinguish employees from independent contractors. “If the owner controls the actual performance of the work and ‘how’ it has to be done, worker is regarded as an employee”
            • Integration Test
              • someone will be an employee whose work is fully integrated into the business, whereas if a persons work is only accessory to the business then that person is not an employee.
            • Economic Test
              • The test looks at three conditions that should be met 1.The employee agrees to provide work or skill for a wage; 2.The employee accepts that the work will be subject to the control of the employer; 3.There must be a contract of employment rather than any other relationship between the parties.
    • Irregular Situations
      • Agency workers
        • General rule is that agency workers are not employees for the purpose of vicarious liability.
      • Casual workers
        • Employers sometimes use workers on a casual basis
      • Loaning employees
        • Some employers may loan an employee from another company or business. To decide if they are liable it must look at who had control over the employee at the time
      • Relationships 'Akin to employment'
        • Relationships ‘akin to employment’ are those which are similar to an employer/employee relationship, that it is enough to warrant liability.
    • The employee must commit a tort
      • The Tort must be committed during the course of employment.
        • The salmond test is then used where a wrongful act must have been authorised by the employer; or An act that, while authorised, was carried out in an unauthorised way.


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