What is vicarious liability?
It’s only 10 March, and it’s been a pretty hectic month already from an employee relations point of view! There have been a number of critical case law decisions regarding vicarious liability which could have a far reaching impact on employers, which makes them much more liable for staff misdemeanours.
What is ‘vicarious liability; you might ask? Well, this is the legal concept where an employer is held responsible for the criminal acts of its employees. The consequences for any organisation, but particularly larger ones, have the potential to be far reaching, as there is significant risk of both legal action being taken against the organisation and the financial pay-outs that often follow.
Previously, vicarious liability could only be established where the employment context itself held a risk that a crime could be committed. Therefore residential care homes employing wardens or clubs and pubs employing ‘bouncers’ could be at risk, for example. In these instances, the employer could argue that an employee was acting ‘on a frolic of their own’ – or in plain English – that the employee was acting for entirely personal reasons.
However earlier this month, the Supreme Court ruled on three cases and effectively expanded the principle of vicarious liability to include a wider range of circumstances when this would apply including beyond the employer-employee relationships.
Cox v Ministry of Justice (MOJ)
Mrs Cox worked as a catering manager at Swansea Prison, and was involved in an accident where a prisoner working in the prison kitchen dropped a bag of rice on her, causing her injury. She successfully brought a claim against the MOJ, on the basis that the prison service, which was one of its agencies, was vicariously liable. It is clear that the prisoner was not an employee of the prison but he had been selected to work in the kitchen, and he was directed by the prison staff.
The Supreme Court stated that vicarious liability can be established in ‘employment like relationships’ and not only in employee/employer relationships. It was therefore considered that the prisoner’s work formed part of the operation of the prison providing meals for his fellow prisoners.
This clearly reflects modern working life and has implications for any organisation with workers who do not have a contract of employment with it, but do deliver work for it. For example facilities management, retail, and leisure organisations.
Mohamud v WM Morrison Supermarkets plc (Morrisons)
In this case, Morrisons supermarket has been held liable for the actions of a staff member who physically attacked a customer whilst at work in 2008. The victim, Mr Mohamud had asked for some help printing some documents at the kiosk of a petrol station when the Morrison’s employee, Mr Khan became racially abusive to him. Khan then followed Mr Mohamud to his car where he physically attacked him on the forecourt. Morrisons did dismiss Khan as a result of his conduct and allegedly offered a settlement to Mr Mohamud, who refused this option and decided to pursue a claim against the company.
The Supreme Court delivered its verdict on 2 March stating that Morrisons was vicariously liable for Khan’s actions. The Court considered two key points:
- The nature of the job Morrisons entrusted Khan to deliver
- Whether there was sufficient connection between the job he was entrusted to do and his wrongful conduct (the abuse and the attack)
The Court found there was a ‘close connection’ between Khan’s job of serving customers and the racial discrimination and the physical attack.
Based on this case, organisations could be potentially responsible for anyone in a customer facing role.
British Airways denies responsibility for claims of sexual abuse by pilot
In a further case, it was reported on 4 March, that British Airways agreed to pay an undisclosed amount to children in Africa who were sexually abused by one its pilots. Mr Wood took his own life in 2013, ahead of his court appearance over the claims.
However the airline was successfully sued by lawyers acting on behalf of the children’s families who argued the airline was vicariously liable as the abuse took place when Woods was carrying out voluntary work for BA. The airline denies the liability but has agreed to pay out, stating:
‘Though we do not bear any legal responsibility for Simon Wood’s actions, we recognise the impact they had on his victims and the distress and suffering they caused. This recognition is reflected in the agreement we have made with the victims representatives.’
What can organisations do to try and limit this liability?
These cases demonstrate that employers with a large workforce do face a significantly increased risk of litigation for the actions of its employees and/or workers.
The employer could look to reduce this by demonstrating that it has taken all reasonable steps to prevent the alleged perpetrator from carrying out the alleged wrongful act. 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
International Workplace can advise you further on these cases and how to ensure that your organisation minimises its risks. We can support you with other critical employment issues and also deliver training to your management and workforce in a range of employment law topics. For more information on any of our services call us on +44 (0)871 777 8881.