Generally, when an employee is actively carrying out their duties, the employer is going to be responsible for them when they do this, but from time to time employees do things which the employer wouldn’t expect, wouldn’t authorise or encourage, but can the employer then be liable for the actions of the employee? The principle that is employed in determining this issue is called vicarious liability as established in the case of Lister -v- Hesley Hall. As well as being responsible for those acts you have specifically authorised as employer, you are also going to be liable where the employee’s conduct is so connected with the employment relationship that the behaviour is still regarded as a mode of carrying out their work, even if it is an improper mode of doing so. Thus, for example, an employee who is responsible for the care of children or elderly people but who then goes on to abuse them or the doorman from the club who went home to get a knife to stab a customer will still be covered and their employer will be liable for their actions.
This year the case of Graham -v- Commercial Bodyworks Limited illustrates this concept at work. Graham worked in a bodywork repair shop and Wilkinson was his colleague. In an incident of ‘horse-play’, Wilkinson sprayed highly inflammable thinning agent on to Graham’s overalls and then sparked his cigarette lighter. As a result of this clearly reckless act, Graham suffered very serious injuries. Wilkinson disappeared without trace, so Graham claimed against his employers. His lawyers submitted that the employer had created or materially enhanced the risk of injury by requiring its employees to work with thinners and had given them a discretion as to how to use them. The risk of injury was inherent in the nature of the business and they argued that Wilkinson’s conduct was so closely connected with what he was employed to do that the employer should be liable.
The Court of Appeal, however, disagreed. They looked at the opportunity for the employee to abuse his power, to what extent the wrongful act furthered the employer’s aims, the extent to which the wrongful act related to friction and confrontational intimacy inherent in the employer’s enterprise and the extent of the power given to the employee over the victim and the vulnerability of potential victims to wrongful exercise of this power. They felt that only one of these factors, namely the opportunity for the employee to abuse his power, had kicked in. This must be a relief for employers because it confirms that merely giving an employee an opportunity to commit a wrong is not sufficient to impose vicarious liability. In the absence of some other factor the employee acting wrongfully is just treated as being ‘on a frolic of their own’.
If you’d like more advice on this subject, do please contact me.