Vicarious Liability

What is it and how can it affect your business?

Posted on: 16/03/2016   By: Lee Rance

Vicarious Liability is when an employer takes on responsibility for a negligent employee. The employer is liable to pay damages to the injured party. In other words, the fault of the employee is transferred to the employer.

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Two conditions must be fulfilled to show vicarious liability:

  1. The employee was acting ‘in the course of his/her employment’
  2. The employee caused the damage by failing to fulfil a common law duty of care i.e. he/she was negligent.

There was recent judgement on a case involving Morrison’s and a member of the public. The Supreme Court case developed out of a row on a Morrison’s petrol station forecourt, in March 2008. The customer asked at the kiosk whether he could print off a document from a USB stick.

The Morrison’s employee, refused and ordered the customer to drive away using “foul, racist and threatening language”. He proceeded to follow the customer outside, pulled open the car’s passenger door and punched the customer. The customer got out of his car but was knocked to the floor and repeatedly kicked. A Morrison’s supervisor intervened and tried to prevent the attack continuing.

The customer launched a claim for compensation against Morrison’s. He has since died from an unrelated illness, but his family continued with the claim. Both the high court and court of appeal declared that Morrison’s was not responsible, on the grounds that there was not a sufficiently close connection between what the employee was employed to do and his conduct in attacking the customer. The Supreme Court judgment disagrees with that conclusion, saying it was wrong to regard the employee as having metaphorically taken off his uniform the moment he stepped out from behind the counter.

The International Workplace offers advice to employers to help protect against vicarious liability. By demonstrating that they have taken all reasonable steps to prevent the alleged perpetrator from carrying out the alleged wrongful act, may reduce risk of litigation for the actions of its employees and/or workers.  This might include any or all of the following:

  • Training on equality and diversity principles
  • Establish and communicate appropriate policies to all staff
  • Highlighting clearly to all staff (employees and workers) what is deemed acceptable and unacceptable conduct and the consequences of the latter
  • Making it explicitly clear that certain activities are not in the scope of employment i.e. do not touch the customers under any circumstances

The Morrison’s case highlights the fact that in order for there to be vicarious liability there must be a sufficiently close connection between an employee’s wrongdoing and the employment such that it is fair to hold the employer liable. But the question will turn on the particular facts of any given case.

Until next time.

Lee Rance