Vicarious liability – what could you be held responsible for?

Vicarious liability is a legal term which deals with the situation where someone is held responsible for someone else’s actions. Generally, an employer will be liable for the acts of its employees, provided those acts are done in the course of their employment.  The key question in determining whether there is liability or not is therefore “was the employee acting in the course of their employment?”

In two recent cases, the Court of Appeal has considered the concept of vicarious liability in circumstances of an attack on one employee by a colleague when the attack flowed from a lawful instruction from the employer.

In the first case, Weddall v Barchester Healthcare, the employee refused a telephone instruction to work a night shift.  He then turned up at his workplace and assaulted the claimant who had given him that instruction.  The court found that the employee was acting in a personal capacity for his own reasons, and had used the underlying instruction to work the night shift as a reason for the act of violence when it was actually unconnected with his work. The employer was not therefore held to be vicariously liable.

In contrast, in Wallbank v Wallbank Fox Designs Limited, the employee was undertaking a task central to his employment.  Mr Wallbank sought to work alongside him and issued some perfectly lawful instructions.  As a consequence the employee threw Mr Wallbank onto a table, causing him injury. In this case, the court was persuaded that the employer should bear vicarious liability for the reaction of its employee to the instruction given to him and that the assault was in the course of employment.

The distinction between an employee acting in a personal capacity and acting in the course of his employment can be a narrow one.  Employers should ensure that they have adequate insurance in place to cover personal injury claims which may flow from injuries occasioned by assaults by other employees.

Vicarious liability also applies in discrimination cases, in that employers can be held liable for discriminatory acts by their employees committed in the course of their employment.  With discrimination, there is a statutory defence if the employer can show that it had taken all reasonable steps to prevent the discrimination.  The bare minimum that an employer will need to argue this defence is an Equal Opportunities policy, but often the courts and tribunals are looking for more than this – for example, was the policy implemented in practice, how recently was it updated, did it form part of the induction process, etc.  They are often looking for the employer to have implemented some training in equal opportunities across their workforce.

When was your equal opportunities policy last reviewed? If you would like us to bring it up to date, do please get in touch. We are also experienced at designing and delivering training to staff and managers on equal opportunities and can tailor a suitable session for your organisation. Why not contact us for a no obligation chat to find out what we can offer? You can contact us at [email protected] or 01243 836840.