Vicarious liability – how far does it go?

For many years the direction of travel in cases where employees have behaved in a manner which the employer would not condone or authorise has been pretty clear. You may remember the case of the night club bouncer who, having turfed a customer out of the premises went on to fight with him in the street and to stab him and the night club owners becoming liable for his actions. This liability of an employer for the actions of the member of staff is known as “vicarious liability”.

The most recent case on this that’s been hitting the headlines involved an employee of Morrisons who worked in a petrol station. A customer attended the petrol station and asked for assistance in helping him print out some documents from a USB stick. The employee was verbally aggressive to that customer speaking to him in a foul mouthed and aggressive way. He left the kiosk and pursued his victim onto the forecourt where he went on to assault him.  The employee opened the passenger door punching the customer on the head. The customer got out of his vehicle and the employee continued to hit him.

The question before the courts was whether or not there was a sufficiently close connection between the events and the workplace such that Morrisons should be liable for the personal injury suffered by the victim. Looking at the way that the cases have been going it’s no surprise that Morrisons were indeed found to be liable – the court saw what had happened as an unbroken sequence of events and therefore a close link with the employees work and duties as a customer facing employee and representative of the company. In particular they picked up on the fact that the employee had told the customer to “not come back here“. This reinforced the relationship with the employment – it wasn’t a personalised statement it was a link to the workplace.

Looking at this in the wider sense you can understand why the courts would find the employer potentially liable as they are more likely to be insured against such losses that they might suffer as a result of a personal injury claim against them compared to the employee who’s likely to have few resources.

There is, however, no defence for the employer. This contrasts with the vicarious liability position under, for example, the Equality Act and in discrimination law. Whilst an employer can be liable for the acts of their employees in harassing colleagues the Equality Act provides a defence for the employer if they can show they’ve taken all responsible steps to prevent the discrimination from occurring. This might involve policies and procedures, training and reminders to employees of the kind of conduct expected of them.

Probably of more note is the second case that went to the Supreme Court alongside the Morrisons case which involved Swansea prison. The catering manager was working in the kitchen when a prisoner accidently dropped a bag of rice on her causing her injury. The prisoner wasn’t an employee but was required to work in the prison and was carrying out his duties under the direction of prison staff. The question was whether or not the Ministry of Justice should be vicariously liable for the actions of that non-employee. The court found that a relationship other than employment is in principle capable for giving rise to vicarious liability provided certain conditions are met.  Firstly, harm must be wrongfully done by a person who carries on activities as an integral part of the business or operation carried out by the defendant and secondly the risk of a wrongful act being committed must be caused by the defendant assigning activities to the person in question. This clearly raises the prospect for organisations of a much wider pool of people being caught. Certainly third sector organisation perhaps heavily reliant on volunteer staff will need to ensure they insure against liability arising from the wrongful acts of those volunteers. It’s also likely to be relevant to organisations with layers of subcontracting – they may not regard themselves as responsible for the activities of subcontractors’ employees but depending on how the workplace functions they could be liable for the activities of those people. The same is likely to be true for organisations that have deliberately outsourced layers of employees such as delivery companies employing delivery staff on a self-employed basis – they could find themselves liable for the actions of those people.

It will be important for organisations to ensure where they can, that they draft provisions into any contracts they have in place to provide, for example, for indemnities and that the person they are contracting with insures against risk.