Advice For Business

Vicarious Liability

Vicarious Liability is a rule of law that imposes strict liability on employers for the wrongdoings of their employees.

Generally, an employer can be held liable for any wrongful act committed while an employee is conducting their duties (and sometimes even when it seems they are not!)

There are 2 ways in which Vicarious Liability can arise

1. Common Law

This is developed by the courts over time via the findings in specific cases that then become binding on lower courts.

This happens when an employer can become liable for one employee causing loss to another, e.g. causing an injury by negligence or assault

2. Statute

Set by Parliament in acts of parliament e.g. the Equality Act 2010 provides by s109 that an employer can be liable for the discriminatory acts of one employee towards another. Employment is defined in the Equality Act 2010 as not only employment under a contract of employment but also other categories of relationship, including apprenticeship, a contract personally to do work (being otherwise known as a “worker”) and Crown employment.

Employers should be aware that the test for employment status is very wide.  There have been a plethora of recent legal cases which have found that contracts or arrangements that seemed, on the face of it, to describe a relationship of self-employment, in fact, were relationships in which those doing the work were “workers”  under the control of the employer. (Uber, Addison Lee, Pimlico Plumbers)

A Company could be liable for the acts of agency workers and even genuinely independent contractors if enough control is exercised over their activities so that either the relationship is akin to employment (for common law purposes) or fulfils the requirements of s109(2) and 3) of the Equality Act 2010 which provides that anything done by an agent for a principal with the authority of the principal, and with or without the knowledge of the principal, must also be treated as done by the principal.

Cases in which the employer has been found liable (and therefore liable to pay compensation) for the wrongdoings of employees despite not authorising those acts include;

  • Lister v Hesley Hall – sexual assault committed by a warden on boys under his care
  • Mohamud v Morrisons  - assault by a petrol station attendant on a customer
  • Morrisons v Various Claimants – data breach by a disgruntled employee who leaked the personal details of thousands of Morrisons’ employees.
  • Bellman v Northampton Recruitment – an assault by an employee on a colleague

Defences to Vicarious Liability

Of course, there are defences available to an employer to show that it ought not to be liable for the actions of its employees. These include being able to show that the act was so far outside the idea of what was in the course of employment that the employer could not be liable, or to show that the employer took all reasonable steps (known as the statutory defence) to prevent any discrimination from occurring. This includes having all the necessary policies and procedures to prevent employees from discriminating against each other in the first place and evidencing that these are reviewed and acted on as appropriate.

Pearson’s Employment Solicitors can of course assist you further with any issues you face, whether it is to help you take preventative steps by drafting and implementing the relevant contracts of employment and policies, to guide you through any grievance and/or disciplinary matters when discrimination has occurred in your workplace, or to help you defend any tribunal proceedings in which you have been cited as vicariously liable for an act of discrimination by one employee towards another.