Introduction

This chapter will address two particular issues arising from the requirement of an employer/employee relationship: which employer will be responsible for the wrongful acts of an employee currently on loan to a temporary employer, and who, if anyone, will be responsible for the wrongful acts of casual or agency staff. These raise distinct, if overlapping, concerns. In both situations, the worker is engaged in temporary work, often for a short period of time, and his relationship with the temporary employer does not bear the traditional hallmarks of a contract of employment. However, in the first situation, the question is not whether the worker is employed, but whether the general or temporary employer will be vicariously liable for his wrongful conduct. Here, the courts have sought to provide some degree of certainty by resort to presumptions of liability and, in more recent times, attempted to find a test consistent with the policy rationales underlying the imposition of vicarious liability. Atiyah in 1967 presented a more radical solution: rather than choosing between the general and temporary employer, policy would suggest that the best approach would be to render both employers liable, thus ensuring the victim compensation without having to predict which employer would be held liable at law. This approach has not generally been adopted by the courts.

The second situation raises more fundamental problems in that the casual worker, supplying his labour on demand, either directly or via an employment agency, resembles an independent contractor, not an employee.