Vicarious liability 265
Finally, it should be noted that although the higher courts decide the basis on which
employees should be distinguished from independent contractors, the question is in every
case one of fact not law. Therefore, the decision will be made by the trial court and an appeal
court will reverse the decision only if the trial court took a view of the facts which could not
reasonably be entertained.
In Chapter 14 we consider various statutes, such as the Race Relations Act 1976, which
do not apply solely to employees. These statutes apply only to those who are ‘employed’,
but the statutes give their own broad definitions of what this means. We will examine these
definitions when we examine the statutes themselves.
of his or her employment? When is an employee acting in the course
employment?
Earlier in this chapter, it was seen that employers are liable for the torts of their employees
only if these torts were committed during the course of the employee’s employment. So
if a teacher negligently injured a student while teaching during school hours the teacher’s
employer would be liable to the student in the tort of negligence. If the same teacher,
when on holiday, accidentally ran over a pedestrian the employer would not be liable to
the pedestrian. This example is straightforward. However, it is not always so easy to say
whether or not an employee was acting in the course of his or her employment when the
tort was committed. The courts have therefore devised various tests.
(i) An employee will be acting in the course of employment when doing what he or she
was expressly or impliedly authorised to do.
Figure 9.3Employee or independent contractor?
