Vicarious liability: for whom should the ‘employer’ be liable?

Abstract

The nature of employment is changing and this brings with it the need to reconsider the rules of vicarious liability as to those for whom an employer should be liable. In recent years government policy indicating the preferred nature of the employment market has brought about considerable changes in employment practices and these have been reflected in employment law. Not only has there been a drift towards self employment but also a rise in such categories as casual workers, agency workers and trainees, and at the same time there has been a rise in legalism in employment law which has produced a number of technicalities specific to that subject. Undue concentration on the contract of employment and the rise of the concept of mutuality of obligation mean that we now have a view of the nature of ‘employment’ which is skewed towards the demands of employment law and the policies embedded therein.