Justification for the Principles of Vicarious Liability

Several reasons have been advanced as a justification for the imposition of vicarious liability, whereby the employer is held liable to third parties for the acts and omissions of employees.

Commentators have suggested that the principle of vicarious liability arises because:

• the employer has the deepest pockets
• the principle encourages accident prevention by giving the employer a financial interest in encouraging its employees to take care for the safety of others
• as the employer makes a profit from the activities of its employees, it should also bear any losses those commercial activities cause

The present climate, in which employers strive to obtain a commercial advantage often with a reduced workforce, has given rise to an increase of such claims.

The test

An employer will be vicariously liable for the acts and omissions of employees where these occur 'in the course of employment'.

A wide interpretation of 'in the course of employment' is adopted. The court will consider whether the employee's conduct is so closely connected with his employment that it is fair and just to hold the employer vicariously liable.

Historically, an employer could avoid liability if it was able to show that the employee had departed on a 'frolic of his own'.

However, the courts have watered down this approach, extending the boundaries of vicarious liability, and exposing employers to a greater risk of such claims being raised.

Violent reactions

The Court of Appeal recently considered two cases, both concerning violent outbursts by employees following the lawful request or instruction of the employer. The two cases were heard together, as they both addressed the question of employer's liability following violent outbursts by employees.

Weddall v Barchester Healthcare Limited [2012] EWCA Civ 25 concerned a health assistant employee who, having received a call from his manager at home asking him to work a night shift due the absence of a colleague cycled to work and attacked the manager whilst drunk.

In this case, the Court of Appeal found that the employer was not vicariously liable because, whilst the attack took place at the place of employment, it was otherwise unconnected with the employment.

Conversely, in Wallbank v Wallbank Fox Designs Limited [2012] EWCA Civ 25, an employer was held to be vicariously liable where a factory employee violently attacked his manager in response to a reasonable instruction.

The court found that there was an inherent possibility of friction in a factory environment. As the attack was instantaneous, the court found that a close relationship existed with the employment in both time and space.

Reducing the risk: What should I do?

Whilst employers can gain some comfort from the failure of Mr Weddall to succeed on his claim, the courts' ongoing reluctance to set a definitive test to determine whether an employee's act or omission occurred 'in the course of employment' reinforces the need for employers to:

• assess the risks of liability to third parties that employees could expose them to
• ensure appropriate training, instruction and supervision is given to employees
• ensure adequate insurance is in place

If you are in any doubt about what steps to take to protect yourself or your business from potential vicarious liability claims, please get in touch.