The Relationship Of Master and Servant As It Used To Be - Or Employer and Employee As It Has Become
This relationship at the heart of modern society is the engine for production and, what is more, by egalitarian means.
Historically the master owed not only a duty of care to his servant, but a moral and practical obligation in the 19th Century to provide accommodation and even amenities: e.g. miners’ cottages, pit head showers, widows’ pensions and disability payments, all out of the bounty of the mine owners’ wealth. Look also at the Quakers and the Joseph Rowntree Foundation Village in the Midlands. These employers looked after their employees before the Workmen’s Compensation Scheme (1920’s) and the Industrial Relations and Employment legislation of the 1960’s and 1970’s (Barbara Castle and Harold Wilson PM). The ethic was look after your men and women who work for you as a charitable duty to those who commit themselves to your enterprise and to ensure their loyalty.
The Judges evolved the concept of vicarious liability in the employer for the negligence of his workman whether to a third party or another employee. The employee as a rule was not to be sued for negligence himself, but his employer rightly carried the can and still does. As a result rules of working were laid down (Health and Safety at work) and careless practices were eradicated as each successful claim set a precedent for later claimants. The employer had a vested interest in this evolution as did his employers’ liability insurers. Premiums reflected the particular employer’s record of claims paid over a period of years.
What is the lesson of vicarious liability in the employer for the negligence of his employee in the course of his duty as an employee? That the employer cannot escape liability even where there is no salary or contract of employment if the “employer” effectively controls the actions and duties of this “employee”. In employment law if the employee wishes to sue for unfair dismissal he must prove:
- He is employed
- - and -
- He has been dismissed.
Then the onus switches to the employer to prove fairness. Once a man becomes an employee he should be given a contract of employment in writing. A contractor, whilst paid, is no employee subject to the decision of the Tribunal or Court. Nevertheless a contractor can fix the employer with vicarious liability for his negligent act. The lesson for employers is put your house in order and ensure each employee has a contract and the same goes for contractors. Moreover lay down good working practices.
4. Frolic of his own:
Is the employee acting outside the course of his employment? Nowadays this plea usually fails if there is a relationship of employer/employee: Priests who commit sexual indiscretions whilst parish priests are still within the course of their employment. The employer Bishop is liable to the victim in damages for assault and trespass to the person for his parish priest’s wrongful act. The Bishop employer’s duty is to restrain such priests, in the clerical example, by taking them off parish duties. Such a decision is dictated by the overriding duty of care on the Bishop employer to protect those who may come into contact with a malefactor priest.
What effect does the relationship of employer/employee have on the employee? He knows he is accountable and if he breaches his contract he will be disciplined and may be suspended from working. Even casual workers know this consequence. The contract of employment offers many benefits to the employee and thus he or she wishes to guard and secure that role. He chose to apply for the job and was selected from several others to perform this occupation. He has been rewarded once the offer of work is made. His attitude of mind is positive - he has not obtained his position because his father had it and solely on account of his degree and past achievements. His contract, his pay and his character with his abilities are crucial. He did not “walk into” his job. If these elements are not present and “the motivation” is lacking in employee and the employer then the necessary spark will be missing. A good job is something to write home about - it is not place seeking and preferment. Modern employment law discourages nepotism because the employee is not owed a living; he earns it on an equal basis with other applicants and employees.
6. Conclusion and the Catholic Priesthood
Once the rules are broken, for example, by not employing Catholic priests on a proper contractual footing, the message going to that priest is that he is not truly valued. The damage is done and his esteem is lowered. Even priests should be paid an annual salary and that should be advertised locally and nationally. Not to do so, on the back of a contract of employment, is lamentable logic. These priests should be not only empowered to administer the sacraments, they should also be considered, like their fellow men, entitled to do a paid day’s work. That is the way to instil humility, modesty and responsibility into the priest. The old regime for the Catholic priesthood in terms of working practices (and I do not know the present rules) was not suited to the post-war years when the clerical sexual abuse scandal raised its head. You cannot expect priests to work only on “expenses” - it does not always generate the rightly sincere attitude to his parishioners. He pays no tax and national insurance like them. The Bishop has not committed a salary commensurate to this priest’s job to him. The Bishop is not being up front. The priest is left in limbo dependent on handouts. What does the Bishop want? A mere university student dependent on his father’s generosity? Where is the openness? Where is the thought: “I may have overspent” - “I should budget for myself”? The parish is not told of this unsavoury “expenses” arrangement. The priest does a job for which he should be paid. The Bishop has a duty to pay him. If he cannot afford that priest - don’t train him and don’t appoint him to a parish.