The main issue in the given circumstance is whether the employment agency and the prison can be held liable or accountable in connection to the actions of Kylo.
The case of Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 is an important case in connection to the situation that has been provided. In the case, it was mentioned that an employer shall bear the accountability of ‘vicarious liability’ if the particular individual is an employee of the employer or somebody ‘akin’ to the employer, and such individual actually committed a tort while being in the course of the employment.
From the above said case, it is clear that an employer shall be vicariously liable only in case of an employee and not in other cases, such as independent contractor. Hence, the difference between the two should be understood. Three primary tests in order to understand the difference amidst an independent contractor and an employee are control test, integration test and the multiple/manifold test.
In regard to the control test, the case of Short v J &W Henderson Ltd [1946] 62 TLR 427 is very important. In the case, it was stated that an individual shall be considered to be an employee when the employer exercises complete control over the individual, which includes, right to select the system of working, right to dismiss and suspend, as well as payment of the salary. Such ruling had also been specified in the case of Catholic Child Welfare Society v The Institute of the Brothers of Christian Schools [2012] UKSC 56.
In regard to the integration test, the case known as Stevenson Jordan & Harrison v MacDonald & Evans [1952] 1 TLR 101 should be considered to be a pertinent case. In the case, it was said that an ‘integration’ test shall mean the extent up to which the concerned individual is actually ‘integrated’ or incorporated into the business of the concerned employer. It was specified that it shall be possible to demonstrate such integration when an individual might be asked to wear company uniform or else working on the property of the concerned company. Hence, substantial integration shows that the individual is an employee.
In regard to the multiple/manifold test, the case of Ready Mixed Concrete (SE) Ltd v Minister of Pensions [1968] 2 QB 497 is a vital case. In this case, it was stated that an individual shall be considered to be an employee, if the multiple or manifold test is satisfied, and the multiple or manifold test shall include instances such as the employee agreeing to deliver skills and work in exchange for salary or remuneration, the employee agreeing to being subject of control by another, and the other terms provided in the contract are actually consistent with the existence of a contract of employment.
If the above said tests are fulfilled, then, an individual shall be considered to be an employee and not an independent contractor. As specified in the case of Various Claimants v Barclays Bank plc [2020] UKSC 13, the concerned bank was not accountable or liable for the actions of a person who caused sexual harassment, because the relation amidst that person and the bank was that of an employer and an independent contractor.
The case of Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 must be considered in relation to the provided scenario. In the above-mentioned case, the Salmond Test had been utilized, which specifies that an employer shall not be considered to be responsible or accountable in relation to any wrongful act that is performed by his or her employee, unless such wrongful act is actually performed in the course of the employment. Another test in relation to vicarious liability can be said to be the ‘Close Connection Test’. In this regard, the case cited to be Lister v Hesley Hall Ltd [2002] 1AC 215 is a crucial case. In the Lister v Hesley Hall Ltd, it was specified that in case of the close connection test, the main question is whether the torts are actually so closely and meticulously connected with the employment, that it shall be just and fair to hold the specific employers as vicariously liable.
The case quoted as Rose v Plenty [1976] 1 WLR 141 is another relevant case in this regard. In this precise case, it had been stated that when an employee actually gives rise to actions that are contrary to the instructions provided by the employer and that have gone so far beyond the acts for which the employee had been employed that the employer cannot be hold responsible or liable in relation to such acts/actions of the employee. In this case, the early case of Limpus v London General Omnibus Co (1862) 1 Hurl & C 526 had been cited.
A specific instance for which an employer shall not be held liable for the actions of an employee is ‘Frolic’ (or deviation). The case of Joel v Morrison [1834] 170 ER 1338 is a pertinent case in this regard. In the case, it had been mentioned that if any specific employee goes beyond his way, against the implied commands of the employer, while conducting the business of the employer, then, such employee shall make the employer liable, however, if such employee goes on a ‘frolic’ of his own, short of the business of the employer, then, the employer shall not be held liable. Similar ruling had also been forwarded in the case of Storey v Ashton [1869] LR 4 QB 476.
The case of Smith v Stages [1989] 2 WLR 529 shall be a relatable case in connection to the provided scenario. In the Smith v Stages case, it had been said that any kind of interruption of or deviation from the course of the employment by the employee (unless such interruption or deviation is supplementary to the course of the employment) shall release the employer from any kind of liability.
In the given scenario, Diego, a prisoner, enrolled in the carpentry classes, for which he was being paid salary. However, Diego accidently wounded Ben. the prison hired Kylo through the employment agency named Umbrella Plc. Kylo was provided with proper induction training regarding the prison procedures as well as suitable treatment of the prisoners and the colleagues and prisoners. Kylo was also provided with a staff uniform. However, Kylo was domineering, racist and rude to his colleagues. Kylo also injured Luther and stole the wallet of Luther.
Applying Imperial Chemical Industries Ltd v Shatwell [1965] AC 656, it can be mentioned that the prison and Umbrella Plc shall bear the accountability of ‘vicarious liability’ because both Diego and Kylo would be employee or ‘akin’ to the prison, and they actually committed the torts while being in the course of the employment.
Applying Short v J &W Henderson Ltd [1946] 62 TLR 427 and Catholic Child Welfare Society v The Institute of the Brothers of Christian Schools [2012] UKSC 56, it can be stated that both Diego and Kylo would be employee because the prison exercises complete control over them, which includes, right to select the system of working, right to dismiss and suspend, as well as payment of the salary.
Applying Stevenson Jordan & Harrison v MacDonald & Evans [1952] 1 TLR 101, it must be said that both Diego and Kylo were actually ‘integrated’ or incorporated into the business of the prison. It should be specified that the integration of Diego and Kylo actually transpired because they had been asked to wear company uniform as well as work on the property of the prison. Hence, such substantial integration shows that Diego and Kylo would be employee.
Applying Ready Mixed Concrete (SE) Ltd v Minister of Pensions [1968] 2 QB 497, it should be stated that both Diego and Kylo shall be considered to be employee, because the multiple or manifold test has been satisfied, which includes the instances such as Diego and Kylo agreeing to deliver skills and work in exchange for salary or remuneration, Diego and Kylo agreeing to being subject of control by the prison authorities, and possibly, the terms provided in the contract of Kylo are actually consistent with the existence of a contract of employment.
As the above said tests have been fulfilled, hence, both Diego and Kylo shall be considered to be employee and not independent contractor. Applying Various Claimants v Barclays Bank plc [2020] UKSC 13, it should be said that the prison and Umbrella Plc would be accountable or liable for the actions of Diego as well as Kylo, because the relation amidst Diego and Kylo and the prison is that of an employer and an employee.
In case of Diego the injury resulted from accident, although, in case of Kylo, the situation is something else.
Applying Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 and applying the Salmond Test, it can be specified that the prison shall not be considered to be responsible or accountable in relation to the wrongful acts of Kylo, unless such wrongful act is actually performed in the course of the employment. Applying the ‘Close Connection Test’, as forwarded in the case cited to be Lister v Hesley Hall Ltd [2002] 1AC 215, it should be specified the tortious actions by Kylo are certainly closely and meticulously connected with the employment, and hence, it shall be just and fair to hold the prison and Umbrella Plc as vicariously liable.
Applying Limpus v London General Omnibus Co (1862) 1 Hurl & C 526 and Rose v Plenty [1976] 1 WLR 141, it should be stated that Kylo has actually given rise to actions that are contrary to the instructions (that have been provided by the prison in a detailed manner) and that have gone so far beyond the acts for which Kylo had been employed that the prison or Umbrella Plc cannot be held responsible or liable in relation to such acts/actions of Kylo.
A specific instance for which the prison and Umbrella Plc shall not be held liable for the actions of Kylo is ‘Frolic’ (or deviation). Applying Joel v Morrison [1834] 170 ER 1338 and Storey v Ashton [1869] LR 4 QB 476, it should be mentioned that Kylo has certainly gone beyond his way, against the implied commands of the prison, while conducting the business of the prison (that is carpentry program), and hence, Kylo shall be able to make the prison liable, however, it must be noted that Kylo has certainly gone on a ‘frolic’ of his own, short of the business of the prison, and hence, the prison or Umbrella Plc shall not be held liable.
Applying the case of Smith v Stages [1989] 2 WLR 529, it should be said the deviation that has been caused in the course of the employment by Kylo (and such deviation was certainly not supplementary to the course of the employment) shall release the prison or the Umbrella Plc from any kind of liability.
Conclusion
In the conclusion, it should be said that the employment agency named Umbrella Plc and the prison can be held vicariously liable or accountable in connection to the actions of both Diego and Kylo, however, in case of Kylo, if the prison and Umbrella Plc are able to demonstrate that his actions were contradictory to the instructions provided to the required extent, then, they may not be held liable in his case.
Catholic Child Welfare Society v The Institute of the Brothers of Christian Schools [2012] UKSC 56.
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509.
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656.
Joel v Morrison [1834] 170 ER 1338.
Limpus v London General Omnibus Co (1862) 1 Hurl & C 526 had been cited.
Lister v Hesley Hall Ltd [2002] 1AC 215.
Ready Mixed Concrete (SE) Ltd v Minister of Pensions [1968] 2 QB 497.
Rose v Plenty [1976] 1 WLR 141.
Short v J &W Henderson Ltd [1946] 62 TLR 427.
Smith v Stages [1989] 2 WLR 529.
Stevenson Jordan & Harrison v MacDonald & Evans [1952] 1 TLR.
Storey v Ashton [1869] LR 4 QB 476.
Various Claimants v Barclays Bank plc [2020] UKSC 13.
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