As an employer, when might you be responsible for the wrongdoings of your employees, carried out whilst they’re at work? Vicarious liability is the thorn in the side of many employers. Amidst the cloud of legal detail, however, is an essential structure which all employers would do well to familiarise themselves with.
The subject of vicarious liability has once again sprung to light following a recent case. Picture the scene: An employee of a petrol station kiosk is asked by a customer, a Somali man, if he can use the kiosk’s facilities in order to view and print documents stored on his USB stick. The employee then proceeds to racially abuse the customer. But the degradation doesn’t end there. The customer, having left the kiosk for his vehicle, is pursued by the employee, who partially lets himself into the customer’s car, all the while continuing the torrent of abuse, and tells him to get out of his car. He punches the customer in the head and when the customer finally gets out of his car to close the door, he is violently punched and kicked by the employee as he lies curled up on the ground.
While deplorable in in the eyes of anyone, whether the employer is vicariously liable for the actions of the employee is a matter for discussion and one that was considered in the Court of Appeal last month
The two stage test
So when is an employer vicariously liable? Can an employer really be held liable for the heinous actions of its employees? The Court of Appeal recently affirmed the long-standing two stage test governing this area.
In the first stage, consideration is given to the relationship between the primary wrongdoer (here the employee) and the person alleged to be liable (the employer company, aka the respondent) and then consider whether that relationship is capable of giving rise to vicarious liability. When the matter concerns an employer and an employee, in all but the rarest of cases, the first stage is satisfied. In the above case, the relationship between the Respondent and the wrongdoer was one of employer to employee.
The second stage requires the Court to determine whether there is “a sufficiently close connection between the wrongdoing, the assaults in this case, and the employment so that it would be fair and just to hold the employers vicariously liable”. This is where things get tricky. In the above case, the customer failed to satisfy this stage, so ultimately the case was dismissed. As was concluded, it was for reasons totally unconnected with his normal duties as an employee of the Respondent company that the wrongdoer decided to leave the kiosk and attack the Appellant. We might summarise this by saying that the attack fell so far outside the scope of the wrongdoer’s employment that vicarious liability of the respondent was avoided. As outlined by the Judge “[the employee’s] duty was simply…to ensure that the shop was in good running order and that petrol pumps were in good running order, to assist people if at all possible, but no more than that.”
For the second stage, it wasn’t enough simply to show that the wrongdoer was an employee and that he committed the act on the employer’s premises. This did not show a “necessary close connection in relation to employment so as to attract vicarious liability on the part of the Respondent”. As concluded by the Judge, “[the employee’s] actions appear to have taken place purely for reasons of his own and beyond the scope of his employment”.