Relationships akin to employment | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 50–60 minutes
This Relationships akin to employment A-Level Law revision page explains how vicarious liability can arise where a tortfeasor does not fit the classic employer-employee relationship. OCR H418 expressly requires the akin to employment tests and new approaches for tortfeasors outside traditional employment. You will learn the approach in Barclays Bank plc v Various Claimants, the factors that can show a relationship is functionally analogous to employment, and the five criteria from the Christian Brothers case. This develops the traditional rules studied in employment status [Lesson 133. Employment status].
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain when the akin to employment approach becomes relevant.
Explain the modern approach to the relationship requirement in vicarious liability.
Explain what is meant by a relationship that is functionally analogous to employment.
Explain the five criteria from the Christian Brothers case that may assist in doubtful cases.
Apply the relevant principles to non-traditional working relationships.
Determine whether the first relationship requirement for vicarious liability is satisfied.
Revision Notes 📚
Relationships akin to employment A-Level Law revision overview
Vicarious liability involves two broad requirements:
there must be a relationship between the defendant and tortfeasor which makes it proper for the law to make the defendant bear responsibility for the tortfeasor's fault
there must be a sufficient connection between that relationship and the tortfeasor's wrongdoing.
OCR's more recent mark schemes express this overall approach through cases including Barclays Bank plc v Various Claimants and Barry Congregation of Jehovah's Witnesses v BXB.This lesson focuses only on the first requirement, the relationship between the defendant and tortfeasor.
The second requirement is considered later through course of employment [Lesson 135. Course of employment] and closely connected torts [Lesson 136. Closely connected torts].
Why is an akin-to-employment test needed?
The traditional vicarious liability model is straightforward:
Employer → employee
Traditional employment status [Lesson 133. Employment status] can be tested using:
control
integration
economic reality or the multiple test.
However, not every working relationship fits neatly into either:
traditional employment, or
genuine independent contracting.
OCR therefore requires students to understand new approaches when dealing with tortfeasors who do not fit in the classic employer-employee relationship.
The modern approach allows some relationships to be treated as sufficiently similar to employment even though the tortfeasor is not a traditional employee.
Such a relationship is described as:
akin to employment
or
functionally analogous to employment.
The correct starting point
The modern approach does not mean that traditional employment tests should always be ignored.
The framework in Barclays Bank plc v Various Claimants begins with the conventional distinction between:
a contract of employment, and
a contract for services.
OCR's 2022 and 2023 mark schemes explain the sequence clearly.
Step 1: Apply the conventional distinction
First ask:
Can the relationship clearly be classified as ordinary employment or genuine independent contracting?
Where necessary, use the traditional tests studied in [Lesson 133. Employment status].
If this produces a clear classification:
employee → the relationship requirement is satisfied through ordinary employment
true independent contractor → the ordinary vicarious liability relationship is not established.
OCR's mark scheme expressly states that there is no vicarious liability for the torts of a true independent contractor under this analysis.
Step 2: If traditional classification is unclear
If the relationship does not fit neatly within either category, ask:
Is the relationship between the tortfeasor and defendant functionally analogous to an employment relationship?
This is the core question for this lesson.
The fact that someone is not directly employed by the defendant does not automatically end the inquiry.
That was a major issue in OCR's 2022 examination. Examiners reported that many candidates incorrectly stopped after deciding that the tortfeasors were not conventional employees instead of moving to the akin-to-employment test.
What does "functionally analogous to employment" mean?
The court considers the substance of the relationship rather than simply its formal label.
OCR's mark schemes identify relevant matters such as:
the tortfeasor's accountability to the defendant
the extent to which the tortfeasor is integrated into the defendant's structure
whether the tortfeasor performs duties aimed at pursuing the defendant's aims and objectives
whether those activities are carried out on behalf of the defendant.
The question is therefore whether the relationship operates sufficiently like employment for it to be proper to impose vicarious liability.
Accountability
Ask:
To what extent is the tortfeasor accountable to the defendant?
Evidence of accountability can support a relationship akin to employment.
For example, a non-traditional worker may still:
have responsibilities set by an organisation
be expected to follow its requirements
carry out activities for which the organisation has responsibility.
This can point towards a relationship that resembles employment even without a conventional employment contract.
Integration
Ask:
How far is the tortfeasor integrated into the defendant's organisation?
A person whose activities form part of the defendant's organisational structure is more likely to resemble an employee than someone operating an entirely separate business.
Integration was already relevant to the traditional employment test, but it also helps to understand whether a non-traditional relationship is functionally analogous to employment.
Pursuing the defendant's aims and objectives
Another central question is:
Whose purposes are being furthered by the tortfeasor's work?
If the tortfeasor carries out duties directly aimed at pursuing the defendant's aims and objectives, this can support an akin-to-employment relationship.
For example:
An organisation regularly uses individuals to perform activities that form an important part of the organisation's own objectives.
Even where those individuals are not conventional employees, their relationship with the organisation may require closer analysis.
This is different from a genuinely independent business simply providing a separate service to a customer.
The Christian Brothers criteria
Where the classification remains doubtful, OCR materials state that the five criteria from Various Claimants v Catholic Child Welfare Society, often referred to as the Christian Brothers case, may assist.
These criteria should not be treated as five rigid statutory requirements.
OCR describes them as factors which may be helpful in doubtful cases.
Criterion 1: Ability to compensate
Consider whether the defendant is more likely than the individual tortfeasor to:
have the financial means to compensate the claimant
be insured against the relevant liability.
This reflects the compensatory purpose of vicarious liability introduced in nature and purpose of vicarious liability [Lesson 132. Nature and purpose of vicarious liability].
However, financial resources alone do not automatically create an employment-like relationship.
It is one consideration within the wider analysis.
Criterion 2: Activity undertaken on the defendant's behalf
Ask:
Was the tort committed as a result of an activity being undertaken by the tortfeasor on the defendant's behalf?
If the tortfeasor is performing activities for the defendant rather than pursuing a completely separate enterprise, this supports an employment-like relationship.
Criterion 3: Activity forms part of the defendant's activities
Ask:
Is the activity carried out by the tortfeasor part of the defendant's own activities?
This is particularly useful in distinguishing:
someone participating in the defendant's activities, from
a genuinely separate independent contractor conducting their own business.
The closer the activity is to the defendant's own organisational purposes, the stronger the argument for an akin-to-employment relationship.
Criterion 4: Creation of risk
Consider whether, by assigning the relevant activity to the tortfeasor, the defendant created the risk that the tort could be committed.
The reasoning is that an organisation which places another person in a position where their activities generate a particular risk may have a stronger connection to the resulting tort.
This criterion should be linked to the work or activity entrusted to the tortfeasor.
Criterion 5: Control
Consider the degree to which the tortfeasor is under the control of the defendant.
The level of control does not have to be identical to the control found in a traditional employment contract.
OCR's Christian Brothers criteria expressly refer to the tortfeasor being under the defendant's control to a greater or lesser degree.
This matters because non-traditional working relationships may contain less direct control than ordinary employment.
The five criteria at a glance
Christian Brothers criterion | Question to ask |
Means and insurance | Is D better placed to compensate C and likely to be insured? |
Activity on D's behalf | Was TF carrying out the relevant activity for D? |
Part of D's activities | Does TF's activity form part of what D does? |
Creation of risk | Did D create the risk by assigning the activity to TF? |
Control | To what degree was TF under D's control? |
These factors allow the court to examine the reality of a non-traditional relationship.
Do not mechanically count the criteria
A weak approach would be:
"Three of the five factors are satisfied, so the person must be akin to an employee."
OCR's materials do not establish a numerical scoring test.
A better approach is to use the factors to build a reasoned overall argument about whether the relationship is functionally analogous to employment.
For example:
TF was carrying out work forming a central part of D's activities, was acting on D's behalf and was subject to some organisational control. Taken together, these facts strongly support the relationship being akin to employment.
Cases involving relationships akin to employment
OCR mark schemes identify a range of authorities relevant to relationships treated as, or considered for being, akin to employment, including:
Various Claimants v Catholic Child Welfare Society, the Christian Brothers case
Cox v Ministry of Justice
Armes v Nottinghamshire County Council
Barclays Bank plc v Various Claimants
Woodland v Swimming Teachers Association
E v English Province of Our Lady of Charity
Viasystems v Thermal Transfer.
You do not need to turn an exam answer into a list of every possible authority.
The strongest approach is to explain the modern framework accurately and use relevant authority to support the principle being applied.
Barclays Bank plc v Various Claimants
Barclays Bank plc v Various Claimants is especially important because OCR's examiner report recommends it as the starting point for analysing the relationship requirement.
The approach is:
apply the conventional employee versus independent-contractor distinction
if that distinction does not clearly classify the relationship, ask whether it is functionally analogous to employment
in doubtful cases, the Christian Brothers criteria may assist
recognise that there is no vicarious liability for the tort of a true independent contractor.
This provides an excellent structure for an OCR problem question.
A relationship akin to employment does not mean the person becomes an employee
This terminology needs care.
If a relationship is akin to employment, the law is recognising that it resembles employment sufficiently for the relationship stage of vicarious liability.
It does not mean that the tortfeasor must suddenly be described as a conventional employee in every legal context.
For your OCR answer, the safest conclusion is:
The relationship is sufficiently akin to employment to satisfy the first requirement of vicarious liability.
That is more precise than simply saying:
"TF is an employee."
A true independent contractor
The modern approach does not eliminate the distinction between employment and genuine independent contracting.
OCR expressly states that there is no liability for the torts of a true independent contractor within this relationship analysis.
This is important because otherwise the akin-to-employment test could become unlimited.
Signs pointing towards genuine independence
The relevant question remains the overall legal classification, but facts pointing away from an employment-like relationship may include a worker operating genuinely independently rather than:
being integrated into D's structure
being accountable to D
pursuing D's aims on D's behalf.
If the relationship is clearly genuine independent contracting under the conventional analysis, the first requirement is not satisfied.
Do not call independent-contractor status a defence
An independent-contractor finding does not mean:
"D is liable but has a defence."
Instead:
The relationship requirement for vicarious liability has not been established.
OCR's 2023 examiner report specifically warns that independent-contractor status is not a defence to vicarious liability.
The 2022 OCR problem: why the modern test mattered
OCR's 2022 examination provides particularly useful guidance on this topic.
The scenario involved monks who:
were not directly employed by a school
carried out Religious Education teaching for the school.
OCR's examiner report stated that these facts should have directed candidates towards the akin-to-employment test, because the traditional Salmond employment approach did not resolve the relationship adequately.
The mark scheme applied the Christian Brothers criteria to the relationship.
Applying the criteria in that assessment
OCR's indicative application included reasoning that:
the school was more likely to be able to compensate the claimants, particularly as the monastery no longer existed
the relevant activity occurred because the monks were carrying out work for the school
teaching Religious Education formed part of the school's educational activities
using the monks to teach created the relevant risk
the monks would have been under some degree of school control, including matters such as the times of lessons and curriculum expectations.
Taken together, OCR regarded these points as strongly supporting the employment-like relationship.
The examination lesson is clear:
Do not stop simply because TF is not directly employed by D.
Applying the modern relationship test
Consider this original scenario:
Westbridge College uses a charitable organisation to provide weekly mentoring sessions to its students. Jordan is a mentor supplied by the charity. Jordan is not employed directly by Westbridge. The mentoring sessions form part of the college's student-support programme. Westbridge decides when sessions take place, allocates the students and requires mentors to follow its safeguarding procedures. Jordan does not operate an independent mentoring business.
Assume Jordan later commits a tort while carrying out this role.
The first vicarious liability issue is whether Jordan's relationship with Westbridge is sufficiently akin to employment.
Step 1: Traditional classification
Jordan is not directly employed by Westbridge.
The facts also suggest that Jordan is not obviously operating as a true independent contractor running an independent business for Westbridge.
The relationship is therefore suitable for consideration under the modern approach.
Step 2: Functionally analogous to employment
Relevant facts include:
Jordan performs mentoring forming part of Westbridge's student-support activities
Jordan acts for the purposes of the college's programme
Westbridge allocates students and determines when the sessions occur
Westbridge imposes safeguarding requirements.
These facts support:
integration
accountability
pursuit of Westbridge's objectives
some degree of control.
Step 3: Christian Brothers criteria
Means to compensate
If Westbridge is better positioned to compensate a claimant and is insured, this can support the policy behind imposing liability.
Activity on Westbridge's behalf
Jordan provides mentoring through Westbridge's student-support programme.
This supports the relationship being akin to employment.
Part of Westbridge's activities
Supporting students is expressly part of the programme being provided by Westbridge.
Again, this supports the relationship.
Creation of risk
Westbridge has placed Jordan in the position of carrying out mentoring with its students.
The particular nature of the later tort would affect how strongly this point applies.
Control
Westbridge decides:
when the sessions occur
which students Jordan mentors
which safeguarding procedures must be followed.
There is therefore some degree of control.
Conclusion
Taken together, these factors provide a strong argument that Jordan's relationship with Westbridge is functionally analogous to employment.
The first requirement of vicarious liability is therefore likely to be satisfied.
However, that does not establish complete vicarious liability.
The next question is whether the tort is sufficiently connected with that relationship. Depending on the type of tort, this would require the principles studied in course of employment [Lesson 135. Course of employment] or closely connected torts [Lesson 136. Closely connected torts].
Worked example: likely true independent contractor
Consider:
Apex Ltd hires Riley's independent specialist business to carry out a one-off technical project. Riley works for numerous clients, operates separately from Apex's organisation and carries out the project as an independent business rather than as part of Apex's workforce.
The conventional employee versus independent-contractor distinction should be applied first.
The facts strongly indicate a true independent contractor.
If that classification is clear, the Barclays approach does not require the court to stretch the relationship into one akin to employment.
The first vicarious liability relationship requirement would therefore not be satisfied.
Worked example: doubtful relationship
Hilltown School uses Casey to run a weekly activity for pupils. Casey is not employed under an ordinary contract of service and is not clearly an independent business. The activity contributes directly to the school's educational programme. The school selects the pupils, sets the times and requires Casey to follow school procedures.
A strong answer would reason as follows.
Conventional classification
The facts do not clearly establish either:
ordinary employment, or
genuine independent contracting.
The relationship is therefore doubtful.
Functional analogy
Casey carries out activities:
forming part of the school's programme
aimed at pursuing the school's educational objectives
under some degree of school control.
This points towards a relationship functionally analogous to employment.
Christian Brothers criteria
Several factors support the relationship:
Casey carries out the activity on the school's behalf
the activity is part of the school's activities
the school places Casey in the position to carry out the role
the school exercises some control.
Conclusion
On balance, the relationship is likely to be sufficiently akin to employment to satisfy the first requirement of vicarious liability.
A complete claim would still require the second requirement to be established.
Keep the two vicarious liability requirements separate
This is essential.
Requirement 1
Is the relationship between D and TF one for which vicarious liability may be imposed?
This lesson answers that question.
Requirement 2
Is there a sufficient connection between that relationship and TF's wrongdoing?
That is a separate question.
If TF commits an intentional tort, you may need the close-connection approach studied in [Lesson 136. Closely connected torts].
OCR's 2022 report found that many candidates failed to make this distinction. The best answers recognised that a non-traditional relationship raised the akin-to-employment test and that intentional wrongdoing separately raised the close-connection test.
A useful relationship checklist
When you are given a non-traditional vicarious liability scenario:
Identify D and TF.
Ask whether TF is clearly an ordinary employee.
Ask whether TF is clearly a true independent contractor.
If neither classification is clear, ask whether the relationship is functionally analogous to employment.
Apply facts showing:
accountability
integration
pursuit of D's aims and objectives
activities carried out on D's behalf.
Where useful, apply the Christian Brothers criteria.
Reach a conclusion on requirement 1 only.
Then move to the separate connection requirement.
This structure avoids mixing employment status with the later question about the tort itself.
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Akin to employment | A non-traditional relationship sufficiently similar to employment to satisfy the relationship stage of vicarious liability. | Use where TF is not a conventional employee but the relationship may still justify vicarious liability. |
Functionally analogous | Operating in substance like an employment relationship even without ordinary employee status. | Apply accountability, integration and pursuit of D's objectives. |
Christian Brothers criteria | Five factors that may assist in doubtful cases when deciding whether a relationship is akin to employment. | Apply relevant factors rather than mechanically counting them. |
True independent contractor | A genuinely independent provider of services whose relationship is clearly one of independent contracting. | Explain why the first relationship requirement is not satisfied where this classification is clear. |
Relationship requirement | The first requirement of vicarious liability, asking whether the relationship between D and TF is one that can justify making D responsible for TF's tort. | Reach a clear conclusion before considering whether the wrongdoing is sufficiently connected to the relationship. |
Hints from the Examiner Reports 💡
Examiner hint: Do not rely only on the traditional Salmond tests when the relationship is non-traditional. OCR's 2022 report found that very few candidates recognised the need for the akin-to-employment approach when the tortfeasors were not directly employed by the defendant.
Examiner hint: Use Barclays Bank plc v Various Claimants as the starting point for the relationship analysis. OCR expressly advised candidates that the case provides the framework for testing employment status in modern vicarious liability.
Examiner hint: Look for factual clues showing that traditional employment analysis is insufficient. In the 2022 examination, the fact that the monks did not directly work for the school was intended to point candidates towards the akin-to-employment test.
Examiner hint: Apply the Christian Brothers criteria rather than merely listing them. High-scoring 2022 responses used all or some of the criteria to make direct links between the relationship and the facts.
Examiner hint: Do not end the analysis simply because there is no conventional contract of employment. Strong answers explain why the relationship may nevertheless be sufficiently analogous to employment.
Examiner hint: Keep the two requirements separate. Establishing an akin-to-employment relationship only satisfies the first part of vicarious liability. You must separately consider the connection between the relationship and the wrongdoing when a complete liability question requires it.
Common Mistakes ⚠️
Mistake: Assuming only ordinary employees can create vicarious liability
Why this is incorrect: OCR expressly requires new approaches for tortfeasors who do not fit the classic employer-employee relationship.
How to improve: If the conventional classification is unclear, move to the functionally analogous to employment question.
Mistake: Applying the akin-to-employment test to a clear employee
Why this is incorrect: The Barclays framework begins with the conventional distinction. Where traditional tests clearly establish ordinary employment, that resolves the relationship stage.
How to improve: Use the traditional tests first, then move to the modern approach only where necessary.
Mistake: Treating every non-employee as akin to employment
Why this is incorrect: A true independent contractor remains outside the ordinary vicarious liability relationship.
How to improve: First determine whether the conventional classification clearly establishes genuine independent contracting.
Mistake: Counting the Christian Brothers criteria mechanically
Why this is incorrect: OCR describes the five criteria as factors which may help in doubtful cases, not a mathematical test where a particular score automatically establishes liability.
How to improve: Use the factors to support an overall conclusion about the substance of the relationship.
Mistake: Focusing only on the defendant's wealth or insurance
Why this is incorrect: The ability to compensate is only one consideration.
How to improve: Also analyse:
activity on D's behalf
whether it forms part of D's activities
creation of risk
control.
Mistake: Confusing the relationship test with the close-connection test
Why this is incorrect: They are the two separate requirements of modern vicarious liability.
How to improve: Use separate paragraphs:
Relationship
Connection with wrongdoing
Mistake: Calling independent-contractor status a defence
Why this is incorrect: OCR's examiner report makes clear that this is not a defence. It means that the claimant has failed to establish the relationship requirement in the first place.
How to improve: Conclude:
"The first requirement of vicarious liability is not satisfied."
rather than:
"D has the independent-contractor defence."
Exam-Style Questions ✍️
Question 1
What is meant by a relationship akin to employment? [2 marks]
Question 2
Explain when the akin-to-employment approach becomes relevant under Barclays Bank plc v Various Claimants. [4 marks]
Question 3
Identify three matters that may indicate that a relationship is functionally analogous to employment. [3 marks]
Question 4
Explain the five criteria from the Christian Brothers case that may assist in deciding whether a doubtful relationship is akin to employment. [6 marks]
Question 5
Explain why a true independent contractor should be distinguished from a tortfeasor whose relationship may be akin to employment. [4 marks]
Question 6
Sofia carries out weekly support sessions for Northside College. She is not directly employed by the college and is not clearly operating an independent business. The sessions are part of the college's student-support programme. Northside chooses which students Sofia sees, sets the session times and requires her to follow college procedures.
Explain whether Sofia's relationship with Northside may be akin to employment. [8 marks]
Question 7
Parker Ltd hires Lewis's independent engineering business for a one-off specialist project. Lewis provides similar services to numerous clients, runs his own separate business and is not integrated into Parker Ltd's organisation.
Explain whether the relationship requirement for vicarious liability is likely to be satisfied. [6 marks]
Question 8
Greenfield School uses instructors supplied by a community organisation to provide weekly educational sessions for pupils. The instructors are not directly employed by Greenfield and the traditional employment tests do not clearly classify them as employees or independent contractors.
The sessions form part of Greenfield's educational programme. Greenfield decides when the sessions take place, specifies what should be covered and requires the instructors to follow school procedures. The instructors carry out the sessions on the school's behalf.
Assume that one instructor commits a tort while carrying out the role.
Advise whether the relationship between Greenfield School and the instructor is likely to satisfy the first requirement of vicarious liability. Do not consider whether the tort is sufficiently connected with the relationship. [20 marks]
Indicative answers and mark scheme
Question 1
Award up to 2 marks for explaining that:
the relationship is not conventional employment
but is sufficiently similar or functionally analogous to employment to satisfy the relationship requirement for vicarious liability.
Question 2
Award up to 4 marks for explaining that:
the conventional employee versus independent-contractor distinction is considered first
traditional employment tests may be used where necessary
a clear employee or true independent-contractor classification is conclusive for this stage
where the relationship remains doubtful, the court considers whether it is functionally analogous to employment.
Appropriate reference should be made to Barclays Bank plc v Various Claimants.
Question 3
Award 1 mark each, up to 3 marks, for relevant indicators such as:
accountability to D
integration into D's organisational structure
carrying out duties pursuing D's aims and objectives
carrying out activities on D's behalf.
Question 4
Award up to 6 marks for explaining the Christian Brothers factors, including:
D is more likely to have the means to compensate the claimant and to be insured
TF's activity is undertaken on D's behalf
TF's activity forms part of D's activities
D creates the risk by assigning the activity to TF
TF is under D's control to a greater or lesser degree.
A higher-level response should make clear that these are helpful factors in doubtful cases, not a rigid numerical test.
Question 5
Award up to 4 marks for explaining that:
a true independent contractor is clearly carrying out genuinely independent services
under the Barclays approach, a clear independent-contractor classification resolves the relationship stage against vicarious liability
an unclear non-traditional relationship may instead require consideration of the akin-to-employment test
independent-contractor status is not a defence, rather the required relationship has not been established.
Question 6
A strong answer should explain:
Traditional classification
Sofia is not directly employed by Northside, but the facts also state that she is not clearly carrying on an independent business.
The relationship therefore requires consideration under the akin-to-employment approach.
Functional analogy
Several facts point towards a relationship similar to employment:
the support sessions form part of Northside's own student-support programme
Sofia is carrying out activities furthering Northside's objectives
Northside selects the students
Northside determines when sessions occur
Sofia must comply with Northside's procedures.
These facts show:
integration
accountability
activity on Northside's behalf
a degree of control.
Conclusion
There is a strong argument that Sofia's relationship with Northside is functionally analogous to employment and therefore satisfies the first relationship requirement of vicarious liability.
Question 7
A strong answer should explain that:
the conventional distinction is considered first under Barclays Bank plc v Various Claimants
Lewis operates his own independent engineering business
he works for numerous clients
the assignment is a one-off project
he is not integrated into Parker Ltd's organisation
the facts therefore strongly point towards a true independent contractor.
Conclusion: The relationship requirement for vicarious liability is unlikely to be satisfied.
There is no need to move artificially to an akin-to-employment analysis where genuine independent contracting is clear.
Question 8
A high-level answer should concentrate entirely on the first requirement.
Overall framework
Vicarious liability requires a relationship between D and TF which makes it proper for D to bear responsibility for TF's fault.
Under Barclays Bank plc v Various Claimants, the conventional employee versus independent-contractor distinction should be considered first.
Where that distinction does not clearly resolve the relationship, the court asks whether the relationship is functionally analogous to employment.
Traditional classification
The instructors are not directly employed by Greenfield.
However, the question also states that the traditional tests do not clearly classify them as either employees or independent contractors.
It would therefore be wrong simply to conclude that they are independent contractors and end the analysis.
The akin-to-employment approach is required.
Accountability and integration
The instructors deliver sessions which form part of Greenfield's educational programme.
They therefore contribute directly to Greenfield's own objectives rather than merely pursuing a completely separate enterprise.
The instructors also have to follow school procedures and operate within arrangements established by Greenfield.
These facts support integration and accountability.
Activity on Greenfield's behalf
The educational sessions are delivered on the school's behalf and form part of what Greenfield itself provides to pupils.
This strongly supports the relationship being functionally analogous to employment.
Christian Brothers criteria
The five criteria may assist because the relationship is doubtful.
Ability to compensate
Greenfield may be better placed than an individual instructor to compensate a claimant and may be insured. This supports the policy basis for liability, although it is not conclusive by itself.
Activity on Greenfield's behalf
The instructor is carrying out teaching activities for Greenfield.
This supports an akin-to-employment relationship.
Part of Greenfield's activities
Providing educational sessions to pupils is part of the school's activities and objectives.
This strongly supports the relationship.
Creation of risk
By arranging for the instructor to provide the sessions to pupils, Greenfield has placed the instructor in the position associated with the activity from which the tort later arises.
The strength of this point would depend upon the nature of the tort, but it supports the relationship analysis.
Control
Greenfield:
decides when sessions take place
specifies their content
requires compliance with school procedures.
The instructor is therefore under a meaningful degree of school control.
Comparison with OCR's 2022 approach
The scenario has important similarities to the type of non-traditional relationship examined by OCR in 2022, where individuals who were not directly employed by a school nevertheless carried out educational activities forming part of the school's work. OCR expected candidates to use the akin-to-employment approach rather than stopping with the traditional tests.
Conclusion
Taken together, the instructor's:
integration into Greenfield's educational activities
performance of duties on the school's behalf
pursuit of the school's objectives
accountability to school procedures
degree of control by Greenfield
strongly support the relationship being functionally analogous to employment.
The first requirement of vicarious liability is therefore likely to be satisfied.
This conclusion does not establish complete vicarious liability. A full claim would separately require a sufficient connection between the relationship and the tortfeasor's wrongdoing, which is developed in closely connected torts [Lesson 136. Closely connected torts].
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