Testing Employment Status (AQA A-Level Law): Revision Notes
Testing employment status
When establishing vicarious liability, courts must determine whether the tortfeasor was acting within the scope of their employment when the wrongful act occurred. This assessment is crucial because employers are only liable for torts committed by employees during the course of employment, not for actions taken outside this scope.
Understanding employment status is fundamental to vicarious liability claims. The distinction between acts within and outside the course of employment determines whether an employer can be held responsible for their employee's tortious conduct.
This content will be assessed in Paper 2, typically alongside negligence questions.
The Salmond Test
The traditional approach to testing employment status is known as the Salmond Test. This test establishes that an employer bears liability only for those torts which an employee commits whilst acting in the course of employment.
The Salmond Test creates two distinct categories of employer liability:
- Torts that are wrongful acts explicitly authorised by the employer
- Torts that are unauthorised ways of performing authorised tasks
Understanding this distinction is essential for applying the test correctly.
Under this test, employers are generally liable for:
- Wrongful acts that the employer has actually authorised – these are actions the employer has explicitly permitted, even though they may be tortious
- Unauthorised ways of performing authorised tasks – these are situations where the employee carries out legitimate work duties but does so in a wrongful manner, even if the employer has expressly forbidden such methods
Worked Example: Applying the Salmond Test
If an employer instructs a delivery driver to deliver parcels but expressly forbids speeding, the employer remains liable if the driver speeds and causes an accident.
Analysis:
- The authorised task is making deliveries
- The wrongful conduct is speeding
- Even though speeding was forbidden, it represents an unauthorised way of doing authorised work
- Result: The employer remains liable under the Salmond Test
The close connection test
Where doubt exists about whether conduct falls within the course of employment, courts apply the close connection test. This test examines how closely connected the employee's wrongful conduct was to the work they were employed to perform.
The test involves two key questions:
The Two-Stage Close Connection Test:
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What function or field of activities did the employer entrust to the employee?
Courts take a broad view when identifying the nature of the job and the employee's responsibilities. -
Was there sufficient connection between the employee's position and the wrongful conduct?
The court must determine whether the connection is strong enough to make it fair and just to hold the employer liable.
Morrison Supermarkets v Various Claimants (2020)
The Supreme Court provided important clarification about the limits of the close connection test in this case.
Key Principles Established:
- Conduct motivated by a personal vendetta does not satisfy the close connection test
- When an employee acts on personal motives rather than in furtherance of the employer's business, they fall outside the course of employment
- The employee's subjective intention matters when determining whether they were acting on the employer's business
This decision narrowed the scope of vicarious liability by emphasising that employers should not be held responsible for purely personal grievances pursued by employees, even if the opportunity to act arose from their employment.
"Frolic of their own"
When a defendant acts outside the course of employment, they are described as being "on a frolic of their own". This phrase originates from Baron Parke's judgment in Joel v Morison (1834).
The concept distinguishes between:
- Employees who deviate slightly from their duties whilst still broadly performing their job (potentially within course of employment)
- Employees who abandon their employer's business entirely to pursue their own interests (on a frolic of their own)
The "frolic" concept provides a useful metaphor for understanding when an employee has stepped so far outside their job responsibilities that the employer can no longer be held liable. The key question is whether the employee was still engaged in the employer's business, however imperfectly, or had abandoned it completely.
Evaluating older cases
Following the Morrison Supermarkets (2020) decision, it is valuable to reconsider earlier authorities to assess whether employees would still be deemed to be acting in the course of employment:
- Limpus v London General Omnibus Co (1862) – bus driver racing other buses contrary to instructions
- Smith v Crossley Brothers (1951) – employees playing a practical joke
- Rose v Plenty (1976) – milkman employing child helper against company policy
- Lister v Helsey Hall (2001) – warden committing sexual abuse
- N v Chief Constable of Merseyside Police (2006) – off-duty police officer's assault
- Mohamud v WM Morrison Supermarkets plc (2016) – petrol station attendant's racially motivated attack
Each case requires analysis of whether the wrongful conduct was sufficiently connected to the employee's role or whether it represented a purely personal action. The Morrison Supermarkets decision provides modern guidance for reassessing these authorities.
Exam guidance
When answering problem questions on this topic:
Step-by-Step Approach for Problem Questions:
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Identify the Salmond Test first – establish whether the act was authorised or an unauthorised way of doing authorised work
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Apply the close connection test if doubt exists – work through both questions systematically
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Consider Morrison Supermarkets – assess whether personal motive takes the conduct outside employment scope
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Use the "frolic" concept – determine whether the employee had abandoned the employer's business
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Support with case law – reference relevant authorities that share similar facts
Evaluation point
The Salmond Test has developed significantly over time. Originally focused on whether acts were authorised, it has expanded through the close connection test to capture a wider range of employment-related conduct. However, Morrison Supermarkets (2020) demonstrates judicial caution against extending liability too far, particularly where employees act on purely personal motives.
Competing Policy Tensions:
This creates tension between:
- Protecting victims who suffer harm through employment-related activities
- Limiting employer liability to genuinely work-connected conduct rather than personal vendettas
Students should be prepared to discuss both sides of this policy debate in evaluation questions.
Lord Phillips observed that this area of law is "on the move" in Various Claimants v Catholic Child Welfare Society (2012) (the Christian Brothers case), highlighting its evolving nature. Students should remain aware of new developments, as the law continues to adapt to modern employment relationships.
Remember!
Key Points to Remember:
The Salmond Test establishes liability for:
- Authorised wrongful acts
- Unauthorised ways of performing authorised tasks
The close connection test applies when doubt exists, examining:
- The relationship between job function and wrongful conduct
- Whether it is fair and just to hold the employer liable
Morrison Supermarkets (2020) confirmed that personal vendettas fall outside the course of employment
Employees acting "on a frolic of their own" are not within the course of employment
This area of law continues to develop through case law
Key Terms to Master:
- Salmond Test – traditional test for course of employment
- Close connection test – examines link between job and wrongful conduct
- Course of employment – the scope of activities for which employers bear vicarious liability
- Frolic of their own – conduct outside employment scope
- Personal vendetta – personal grievance that takes conduct outside employment
Critical Cases to Reference:
- Joel v Morison (1834) – established "frolic of their own" concept
- Morrison Supermarkets v Various Claimants (2020) – personal motive excludes liability
- Various Claimants v Catholic Child Welfare Society (2012) – law described as "on the move"