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7 min read.

This newsletter covers:

  1. Horseplay and Vicarious Liability
  2. Holiday pay and the Gig Economy
  3. The Great Resignation
  4. Climate Friendly Employment Contracts

Horseplay and Vicarious Liability

Mr Heath detonated two explosive pellets close to Mr Chell causing injury to his hearing. This happened in the workplace, namely on the premises of Tarmac. Were Tarmac vicariously liable as employer? In the case of Chell v Tarmac, Mr Chell claimed they were. He cited a history of friction between fitters employed directly by Tarmac, and others by Roltech – rivalries arose.

The potential vicarious liability of an employer is relevant where an employee causes injury in the context of work. Obviously employers, being insured, have deeper pockets than employees so the injured party will often look to the employer for recompense.

Mr Chell considered there was a close enough connection between Mr Heath’s action and the work he undertook for Tarmac. However the Court disagreed, there was not a close enough connection. The Court drew an analogy between the employer’s potential liability and the expected subject matter of a risk assessment – horseplay, ill-discipline and malice are not matters usually included. Those are acts the employee must know are outside the behaviour expected in the workplace.

There is a long history of cases on employers’ vicarious liability. Vicarious liability has two basic requirements:

  1. A relationship between the employer and the individual who caused the injury
  2. A connection between this relationship and the wrongdoer’s act

How do these two basic requirements relate to the following scenarios?

In the case of Cox v Ministry of Justice 2016 the Court considered a relationship other than one of employment. Mrs Cox worked as a catering manager in a prison kitchen. She supervised staff in the kitchen, including prisoners. A prisoner accidentally dropped a sack of rice on her, injuring her back. The Court considered the following questions:

  1. Was the activity which caused the injury undertaken on behalf of the defendant and part of the business activity of the defendant
  2. Did the employer create the risk of the accident happen by allowing the prisoner to carry out the activity?

In this case the Court held the employer was vicariously liable.

In the case of Muhamud v WM Morrisons Supermarkets plc 2016, a Morrisons’ employee, Mr Khan, violently assaulted a customer who had asked him a question to which he took exception. The Court held Mr Khan’s job was to attend to customers and respond to them. His conduct was inexcusable but within the field of activities assigned to him. The employer was vicariously liable.

In Graham v Commercial Bodyworks Limited 2015 Mr Wilkinson sprayed thinners on the overalls of his friend and co-worker Mr Graham and lit a cigarette lighter. Mr Graham’s overall caught light and he was injured. The Court held that Mr Wilkinson’s actions bore no resemblance to the work for which he was employed. Accordingly the employer was found not to be vicariously liable for Mr Graham’s injuries.

Holiday Pay and the Gig Economy

Gary Smith has been back in Court against Pimlico Plumbers, this time claiming unpaid holiday pay.

In 2018 Gary Smith went to Court to establish he was not self-employed but a worker. He worked solely for Pimlico Plumbers and was sent out in one of their vans to do work on behalf of the company. Despite the company’s claim that Mr Smith was self-employed and as a skilled worker was in a strong bargaining position, he succeeded in his claim.

Workers do not enjoy the same rights as employees but nonetheless they do have entitlements for example to the national minimum wage and to paid holidays. Mr Smith worked with Pimlico Plumbers between 2005 and 2011 during which time he took unpaid holidays. In his most recent case he claimed £74,000 in unpaid holiday pay and succeeded.

The lesson to employers is to be sure of the status of those who carry out work for you.

The Great Resignation

Employees are leaving their jobs in record numbers, sometimes leaving the workforce entirely. Vacancies are at records levels. According to the Office for National Statistics they hit a record of 1,247,000 in October to December 2021.

Why are employees resigning in record numbers? Many causes are cited: lack of hybrid working, a mandatory return to the workplace, a perceived preference of office bound workers over homeworkers. Ultimately it could be the pandemic – employees are more focussed on their work life balance.

Employers can take steps to recruit and to retain employees. They can offer:

This year around thirty UK employers will take part in a six month trial on a four day working week. Employees will work four days and will not receive a pay cut. It is anticipated

Trials are ongoing in the US, Ireland, Canada, Australia and New Zealand. In 2023 a trial will proceed in Scotland. In Belgium employees will soon be entitled to work a four day week with no loss of wages – employees can request this working arrangement and employers can turn it down but they must provide written reasons, and they must be reasonable. And in Iceland 85% of the workforce has already opted to work a four day week. Across Europe the workplace is changing.

Climate Friendly Employment Contracts

Last month the UN Secretary General, Antonio Guterres, said the latest Intergovernmental Panel on Climate Change (IPCC) report represents an “atlas of human suffering and a damning indictment of failed climate leadership.” He went on to say, “Nearly half of humanity is living in the danger zone – now. Many ecosystems are at the point of no return – now. Unchecked carbon pollution is forcing the world’s most vulnerable on a frog march to destruction – now.’

How can employers and employees take effective action at this troubling time? Much can be done to reduce the carbon footprint of businesses and of employees. Perhaps it’s time to look at contracts of employment, to include in them a focus on climate, Net Zero and sustainability? This will lead to benefits for employer, employee and planet.

Visit the Chancery Lane Project website for contract clauses with solutions to climate change. Here you will find clauses not only to add to employment contracts but to commercial agreements. Take for example “Athena’s Clause”, a set of Employee Climate Engagement Provisions requiring the employer to provide, and the employee to participate in, a routine of regular climate education and awareness-raising training during working hours. Employees can learn and businesses can prosper. Possibilities for education include:

A further option is for the employer to publish metrics internally on its carbon footprint and behavioural changes, together with any avoided emissions for example from travel or utilities or resource use.

Also of interest to employers and employees is the Chancery Lane Project’s Net Zero Culture Employment Handbook. This provides Net Zero and sustainability clauses for employment handbooks. These issues can permeate all levels of the employment relationship and encourage development of a Net Zero culture in the company.

And can “Garden leave” be productive? “Eric’s Clause” repurposes Garden leave and employee sabbaticals as opportunities to volunteer with environmental organisations by integrating climate-conscious employer-employee obligations into employment contracts.

The topics covered in this Newsletter are complex and are provided for general guidance only.  It does not provide a full statement of the law.  Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.

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