SIMASIKU, M. (2024) BECOMING ONE WITH THE MODULE FOR TORTS.

(A) The Control Test.

The control test is a method used to determine if someone is an

employee or an independent contractor. It focuses on who controls
how the work is done.

1. Control Over Work: If the person doing the work is directed by

someone else on how to do it, they are likely an employee. If
they decide how to do the work themselves, they are likely an
independent contractor.
2. Example: Think of hiring an independent electrician. You would
hire them to wire your house, but you wouldn’t tell them how to
do the wiring. This shows they have control over their work, so
they are an independent contractor.

 Yewen v Noakes (1880): The control test originated. In this

case, the defendant tried to pay less tax on a property by
claiming the occupier was an employee. However, the court
decided that the occupier was not an employee because he
wasn't being told exactly how to do his work.

Application

 Regular Jobs: In typical jobs, employees usually follow detailed

instructions from their bosses. For instance, a store manager
can tell an employee to arrange shelves in a specific way.
 Skilled Professionals: However, in jobs requiring high skill, like
doctors or surgeons, the employer can't dictate the exact
methods for performing complex tasks like surgeries. Therefore,
these professionals might not fit perfectly into the control test as
defined by the Yewen case.

The control test is useful for identifying employment relationships in

many situations but has limitations when it comes to highly skilled
professionals who require autonomy in their work.
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(B) The Organisation/Integration Test.

The organisation or integration test is another way to determine if

someone is an employee or an independent contractor. It looks at how
central the person's work is to the main operations of the business.

Key Points

1. Core vs. Ancillary Work: Employees typically do work that is

essential to the business's main operations. Independent
contractors usually do work that supports the business but is
not central to its main activities.
2. Contracts: An employee has a contract of service, meaning they
are an integral part of the business. An independent contractor
has a contract for services, meaning their work is
supplementary.

 Stevenson, Jordan & Harrison Ltd v MacDonald & Evans

(1952): In this case, an accountant wrote a book using his skills
from his job. When he died, the question arose about who
owned the book's copyright: his estate or his employer. The
court decided that the parts of the book that came directly from
his work at the firm belonged to the firm, while other parts
belonged to his estate. This distinction helped to illustrate that
work integral to the business is different from work that is
merely associated with it.

Application

 Core Employees: Consider a sales company. The salespeople,

HR department, and payroll team are all integral to the
company's daily operations. They are employees because their
work is central to the business.
 Support Workers: The company might also hire a cleaner or a
glazer. While their work is important, it is not essential to the
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main function of the business. If they don't show up, the

business can still operate. These workers are independent
contractors because their work is supplementary.

Limitations

 Exceptions: Sometimes, a contractor might do crucial work

temporarily, like an IT consultant fixing a major computer
problem. Even though their work is vital at that moment, they
are still not an employee. This shows that the organisation test
alone is not perfect and highlights the need for using multiple
tests to avoid confusion.

The organisation/integration test helps to distinguish between

employees and independent contractors by looking at how essential
their work is to the business. While useful, it has limitations and is
best used alongside other tests for a clearer understanding.

(C) The Economic Reality Test.

The economic reality test, also known as the multiple or pragmatic

test, is a comprehensive method used to determine if someone is an
employee or an independent contractor by examining various aspects
of their work arrangements.

The test considers several criteria to make this determination:

1. Work and Payment: The person must provide work or skill for
the employer and receive payment or other remuneration.
2. Control: The person must agree (explicitly or implicitly) to work
under the control of the employer.
3. Consistency: The overall working arrangements must be
consistent with those of an employee.

Historical Case
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 Ready Mixed Concrete Ltd v Minister of Pensions (1968): In

this case, drivers who were hired to deliver concrete were
considered independent contractors even though they had to
follow specific company rules. The court looked at several
factors: the drivers used their own vehicles, bore the costs of
maintenance, had flexible work arrangements, and could hire
others to do their work.

Criteria Considered in the Test

1. Working Hours: Employees usually have fixed or structured

hours. Independent contractors have flexible schedules, often
based on task completion.
2. Payment: Employees receive regular salaries, while contractors
are typically paid per job.
3. Tax: Employers deduct taxes from employees' wages, whereas
contractors are responsible for their own taxes.
4. Equipment: Employees usually get their equipment and
workspace from their employer. Contractors use their own
equipment and workspace.
5. Independence: Employees have limited freedom and must
follow their employer’s directives. Contractors have more control,
can refuse jobs, and can work for multiple clients
simultaneously.

Risk and Assets: If the worker provides their own tools, bears the
risk of loss, and is paid based on results, they are likely an
independent contractor.

Market Investigations Ltd v Minister of Social Security (1969):

A market research company hired part-time workers to conduct
surveys. Despite their flexibility and lack of traditional benefits, the
court ruled them as employees because their work was central to
the company's operations.
SIMASIKU, M. (2024) BECOMING ONE WITH THE MODULE FOR TORTS.

The economic reality test uses a broad range of factors to distinguish

employees from independent contractors. While it is thorough, it is not
exhaustive, and each case can vary depending on specific
circumstances. This test helps provide a clearer picture by considering
the overall nature of the working relationship.

Establishing a Tortious Act/Has a Tort Been Committed?

For vicarious liability to be possible, two main things must be

established:

1. Close Relationship: There must be a close relationship between

the employer (or agent, business partner, etc.) and the person
who committed the wrongful act.
2. Tortious Act: The person (employee or otherwise) must have
committed a tortious act (a wrongful act that causes harm).

Primary vs. Secondary Liability

 Primary Liability: The person who directly committed the

tortious act is primarily liable.
 Secondary Liability: The employer or principal can be
secondarily liable, but only if primary liability is established.

Negligence Example

If an employee acts negligently while working, you must first prove the
employee was negligent. Only then can the employer be held
vicariously liable for the employee’s negligence.

Immunity Exception

If an employee has immunity from being sued (due to personal status

like spousal immunity), this does not protect the employer. For
example, in Broom v Morgan:
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 A wife was injured by her husband's negligence while working

together in a pub.
 At the time, she couldn't sue her husband directly.
 However, she could sue the employer because the husband's
immunity did not extend to the employer.

Tortious Acts in the Course of Employment

An employer is only responsible for acts that happen during the

course of employment:

1. Authorised Acts: If an employee commits a tort while following

the employer's direct orders.

o Example: If a company orders an employee to dump toxic

waste, the company is directly liable.

2. Implied Authority: Employees might have implied authority to

act in certain situations.

o Poland v Parr & Sons, an employee injured a child while

protecting company property. The court held the employer
liable because the employee acted under implied authority.

Authorised Acts in an Unauthorised Manner

Sometimes, an employee does an authorised job but in an

unauthorised way.

 Century Insurance v NI Road Transport Board, a driver lit a

cigarette while transferring petrol, causing an explosion. The
employer was held liable because the driver was doing his job
(delivering petrol) in an unauthorised manner.

Explicitly Prohibited Acts

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If an employer explicitly prohibits an action, they are usually not

liable if the employee does it anyway:

 Iqbal v London Transport Executive: A bus conductor was not

allowed to drive buses but did and caused an accident. The
employer was not liable because driving was outside the scope
of his duties.
 London County Council v Cattermoles (Garages) Ltd: An
employee was told not to drive but drove a van to move it,
causing an accident. The employer was liable because moving
vehicles was part of his duties, even though he did it in an
unauthorised way.

Unlawful Activity

When employees commit criminal acts during employment, vicarious

liability can still apply if there is a close connection between the
criminal act and their job duties:

 Lister v Hesley Hall Ltd: A school warden abused children in

his care. The court held the employer liable because the abuse
happened while performing his duties.
 Mohamud v WM Morrison Supermarkets plc: An employee
assaulted a customer while at work. The court held the
employer liable because the assault was connected to his job
duties.

Conclusion

For vicarious liability:

 The wrongful act must occur within the course of employment.

 The act must be connected to the employee’s duties, even if
done in an unauthorised way.
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 Employers can be liable for employees' criminal acts if closely

related to their job.

Distinguishing Between Employment and Personal Conduct

Employment Conduct vs. Personal Conduct

Sometimes, it's hard to distinguish between what an employee does as

part of their job and what they do for personal reasons, especially if
personal activities happen during work hours and at the workplace.

Key Principle: "A Frolic of His or Her Own"

The law differentiates between conduct that is part of an employee's

job and conduct that is purely personal (a "frolic of their own").

Joel v Morison [1834] 172 ER 1338:

o A driver hit someone while visiting a friend during his

work route. The employer was liable because the driver
was generally doing his job, despite the detour. “If the
servants, being on their master's business, took a detour
to call upon a friend, the master will be responsible […]
but if he was going on a frolic of his own, […] the master
will not be liable."
o Even if the employee makes a slight detour for personal
reasons, if they're generally on the job, the employer can
be liable.

Storey v Ashton [1869] LR 4 QB 476:

 After completing deliveries, a driver went to visit his

brother-in-law and caused an accident. The employer was
not liable because the driver was on a personal journey,
not related to his job.
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o Distinction: In Joel, the driver was still performing his

job duties with a minor detour. In Storey, the driver had
finished his job and was on a purely personal trip.

Employers’ Indemnity

Joint Tortfeasors

When an employee commits a tortious act, both the employer and

employee are considered joint tortfeasors. This means the employer
can sometimes recover losses from the employee.

Indemnity Through Breach of Contract

Common Law Indemnity:

o Lister v Romford Ice & Cold Storage Co Ltd [1957]

 An employer was held vicariously liable for an

employee's negligence. The employer's insurance
company sued the employee for acting without
reasonable care. The employer could recover the
loss from the employee because the employee
breached an implied term of the employment
contract by not acting with reasonable care and
skill.

Limitations:

o Jones v Manchester Corporation [1952] 2 QB 852

 A hospital board tried to recover damages from a

junior doctor’s mistake, but the board was also
partly to blame for not providing proper supervision.
The claim for indemnity failed because the hospital
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was partially at fault. Indemnity is only possible if

the employer is blameless.

Summary

Employment vs. Personal Conduct:

o If an employee is generally performing their job duties,

even with minor personal detours, the employer can be
held liable.
o If the employee's actions are entirely personal and
unrelated to their job duties, the employer is not liable.

Employers’ Indemnity:

o Employers can seek indemnity from employees for losses

due to the employee’s breach of contract (acting without
reasonable care and skill).
o This indemnity is only available if the employer has not
contributed to the employee's wrongful conduct.