Law for Business Case Study Example | Topics and Well Written Essays - 1500 words

Law for Business - Case Study Example There have been various justifications which have been provided for this approach which include the control test, deeper pocket justification etc which have been said to be adopted by judges. (Professor Glanville Williams) 2 The three tier test which needs to be proved in order to hold an employer vicariously liable is a) offender was the employee (of that employer) b) a tort had been committed by the employee c) and it was committed in the course of employment.3 When determining the nature of the relation with the person that is whether he is an employee or an independent contractor the facts as well as the law have to be considered. However if there are written documents on whose construction it can be established then it is purely a question of law. (Davies v. Presbyterian Church of Wales)45 The distinguishing factor has been said to be contract of service or of employment which clearly point out to an employer-employee relationship allowing vicarious liability for torts of others, however if there is a contract for services then no employer-employee relationship will be found and thus no vicarious liability.6 The traditional aspect for determination of employee from independent contractor was th... Noakes)7 It needs to be pointed out tat the use of the control test has been limited because of difficulties being faced by courts, however it has not been abandoned. 8 The next important aspect which needs to examined it that of mutuality of obligations that is offer of work by employer and acceptance by employee. It needs to be pointed out that these tests are helpful but not conclusive. Therefore there are many factors which have been taken into account and the most important case can be said to be Ready Mixed Concrete (South East) Ltd. V. Minister of Pension and National Insurance9 on the applicability of such factors.10 By looking at the above case it will be presumed that Jim, the software engineer was an employee of Cobend rather than an independent contractor. The second point of the test which requires the commitment of a tort by the employee has clearly led to the employer being vicariously liable (Staveley Iron and Chemical Co. Ltd v. Jones)11 . There had been variations from this approach but it has been restored that an employer will be liable for the tort committed by the employee.12 The final requirement of 'in the course of employment' has been said to b a vexed requirement. There have been found to be many policy reasons for not holding employers liable but it has been said that if an employee has committed a tort which comes under the scope of employment then the employer will be held liable otherwise not. An important point which needs to be regarded with regards to the facts is that it needs to be established that Jim acted carelessly and therefore Cobend should be held accountable. The main points of consideration are the questions of the reason for employment of the employee and if it