| Case Name | Key issue (or Test) | Facts | Analysis |
| Market Investigations v Minister of Social Security [1969] 2 QB 173 | Control Test Case | The control test was applied to determine whether part time interviewers working under short-term contracts for a market research company were employees or independent contractors | Part time workers were employees on the grounds that the employer exercised extensive control over their work, including when they worked, and their freedom to work for others during the relevant period. “[is] the person who has engaged himself to perform these services performing them as a person in business on his own account?” In making its decision, the court would take into account many factors including, for example, who provides the tools or equipment, the level of independence given in deciding on the workplace and manner of work, whether there are other helpers hired and so on |
| Lee Ting Sang v Chung Chi Keung [1990] 1 HKLR 764 | Worker or IC | The applicant, a master chiseller injured in the course of his work, sought compensation under the Employees’ Compensation Ordinance (Cap. 282) from the respondent subcontractor. Entitlement to compensation under the ordinance requires proof that the applicant is in a contract of employment with the employer. | Lee Ting Sang lost in labour tribunal, lost in HC, lost in CoA, and won in Privy council. The Privy Council reversed the courts below and found the applicant to be an employee. As Lee Ting Sang did not provide his own equipment or hire his own helpers, had no responsibility for investment in or management of the work on the construction site, and did not price the job but was paid either a piece-work rate or a daily rate according to the nature of the work he was doing, he was found to be in a contract of employment. Although he was not supervised in his work, this was not considered important for a skilled man who could simply be told what to do and be left to get on with it. |
| Cheng Yuen v Royal Hong Kong Golf Club [1997] 2 HKC 426 | Worker or IC | The appellant, aged 82, had worked for nine years as a golf caddie at the club, where his job was to assist individual golfers and carry their golf clubs as they played their rounds on the golf course. As a caddie at the Club, the appellant was supplied with a uniform and a locker, and after arriving at the club each morning would work if called upon, that is, if his services were needed by a golfer. If he worked he was paid by the club, which later debited the account of the golfer who used the appellant’s services. So he was not given a consistent pay. The club decided that the appellant’s services were no longer required and gave him no monetary compensation. The appellant claimed for wages in lieu of notice and long service payment. | Cheng Yuen won labour tribunal, but lost in privy council. The Privy Council held that a golf caddie was an independent contractor and not an employee of a golf club under a ‘contract of employment’ as in that case, there was no continuous contract as defined under section 3(1) of the Employment Ordinance (Cap. 57). They agreed with the Hong Kong Court of Appeal that the plaintiff had no contract of service with the club because there was an absence of mutuality of obligations between the parties: the club had no obligation to provide work to the plaintiff and the plaintiff had no obligation to show up at the club. |
| Close connection test | Is employee’s tort so closely connected with the employment that it is fair and just to hold the employer liable?” | Lord Hobhouse of Woodborough stated that “[t]he correct approach to answering the question whether the tortious act of the servant falls within or without the scope of the servant’s employment for the purposes of the principle of vicarious liability is to ask what was the duty of the servant towards the plaintiff which was broken by the servant and what was the contractual duty of the servant towards his employer”. Therefore, his Lordship held that “[if] the act of the servant which gives rise to the servant’s liability to the plaintiff amounted to a failure by the servant to perform that duty, the act comes within ‘the scope of his employment’ and the employer is vicariously liable. If, on the other hand, the servant’s employment merely gave the servant the opportunity to do what he did without more, there will be no vicarious liability”. Lord Millett added that vicarious liability was best understood as a loss-distribution device, meaning that if the employer’s objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. | |
| Lister v Hesley Hall Ltd [2002] 1 AC 215 | In the course of employment | Lister involved whether the employer was vicariously liable for sexual abuse carried out by an employee. The claimants were residents at a school boarding house owned and managed by the defendant. The warden, hired by the defendant, had systematically abused the claimants and they sought damages against the defendant for personal injury caused by the defendant’s negligence in hiring the warden. | The court stated that an employer may be liable “[i]f the unauthorised acts of the employee are so connected with acts which the employer has authorised that they may properly be regarded as being with the scope of his employment”. The problem is where to draw the line. The Court of Appeal held that the warden’s acts could not be regarded as unauthorised while carrying out his authorised duties but were intentional wrongs for which the defendant was not responsible. On appeal the House of Lords held that, having regard for the circumstances of the warden’s employment, including close contact with pupils and the inherent risks involved, there was a sufficient connection between the work that the warden had been employed to do and the acts of abuse that he had committed. The warden’s abusive acts were therefore performed in the course of employment for which the defendants were vicariously liable. Lord Steyn held that the question was whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. |
| Ming An Insurance v Ritz-Carlton Ltd [2002] 3 HKLRD 844 | In the course of employment | A doorman was employed as a backup driver (a car jockey) by the hotel to move the hotel’s limousines when the regular driver was off duty. On occasions he also gave the hotel staff a lift to buy food outside the hotel. On one occasion, as the car jockey was driving a bellboy to a restaurant to pick up some take-away food, there was an accident and two pedestrians were injured. The issue was whether the doorman/driver was acting in the course of employment, so making the hotel vicariously liable for his reckless driving | As the doorman/driver was employed to move limousines on the public road, the risk of an accident was reasonably within the contemplation of the hotel. As such, there was a sufficiently close link between the doorman’s employment and his reckless driving that caused the accident. Factors: uniform, car, and hotel had interest in making sure e’ee well fed |