The discussion that follows explains why.
Vicarious liability is a legal concept assigning responsibility to an employer for the negligence or prohibited conduct of an employee acting in the course of his duties at work. If the conduct is in no way connected to the employment the employer will not be held liable. There are several reasons for the doctrine of vicarious liability and Michael A. Jones offers perhaps the best synopsis. Jones explains that vicarious liability can be justified on the following grounds:
"(1) The master has the 'deepest pockets'. The wealth of a defendant, or the fact that he has access to resources via insurance, has in some cases had an unconscious influence on the development of legal principles.
The courts have established and developed a three tier test in order to determine whether or not the tortfeasor is an employee and his employer is vicariously liable for the conduct of his or her employee. The three tier tests are: "the control test"2, "the integral test"3and "the multiple test."4
The control test is satisfied if the employee is under the control of the employer. For instance if the employer can terminate the employee for failing to carry out the employer's instructions, the employee is under the control of the employer. ...
likely to be considered an employee and if the employer is at liberty to hire the employee and to terminate his services he will in all likelihood be deemed an employee within the context of the control test.5 Margaret Simpson should have no difficulty establishing the control test for the purpose of having Tom deemed an employee of AFS. He himself stated that he was "only doing his job." Moreover in attempting to justify his conduct he stated that he was responding to comments about his poor performance made by his manager Sarah Harper. This statement is a manifestation of the control Tom's employers had over the manner in which he performed his duties. There were also previous talks about job losses and performance targets which would suggest that Tom was an employee under the control of AFS.
By virtue of the integral test, if the employee forms an integral part of the business and is not merely incidental to the business then he will be deemed an employee.6 Tom Barnes is employed at AFS' headquarters in the position of product sales executive. AFS as a financial services business and selling its products can not in any way be viewed as merely incidental to the success of the business. Therefore it is fair to assume that Tom Barnes, a product sales executive is an integral part of the business.
The multiple test is an amalgamation of the control and integral tests. In Ready Mix Concrete (South East) Ltd v Minister of Pensions (1968) 2 QB 497 it was held that the multiple test is satisfied and an employee is said to be under a contract of service if he is paid for his services, is under the control either expressly or implicitly of his employer and if there are other terms and conditions reflective with an employment contract.7
On the facts of the case for