In this article, Kathy Daniels, employment law author and lecturer, looks at the concept of vicarious liability, and a recent ruling which concluded that the employer is responsible for the actions of its contractor.

Vicarious liability means that the employer is responsible for the actions of its employees in the course of their employment. Rulings from the courts have helped us to understand these responsibilities in more detail.

In the case of Jones v Tower Boot Company [1996], a young lad, who was just 16 years old, was in his first employment. He was of mixed race origin, and a small group of older men, who were all of white ethnic origin, subjected him to a series of racial abuse. They threw metal bolts at him, they branded him with a hot screwdriver and they hurled a number of insults at him. After three months he resigned, and claimed race discrimination. The employer argued that it was not liable because it was not aware of what was happening, it did not condone what was happening and it argued that the employees concerned were not acting within the course of their employment.

The employer was unsuccessful in its argument. Ignorance of what the employee is doing is no defence to vicarious liability. There is a two stage test that needs to be applied.

  1. Is there a relationship between the individual(s) concerned and the employer which is one of employment or is akin to employment?

  2. If so, was the wrong that occurred sufficiently connected with this employment?

In the Jonescase the individuals were definitely employees, and the events occurred during working time and in the workplace. It was not possible to argue that they were unconnected to the employment.

Even if the employer is appalled by what has happened and sees the events as something driven by the employee’s personal views, this does not mean that there is no liability. In the case of Mohamud v Morrisons Supermarkets plc [2016], a man of Somali ethnic origin stopped at the garage. He went to the forecourt kiosk and asked if it was possible to print some documents. The employee working in the kiosk subjected him to racial abuse, and then followed him back to his car and attacked him.

The employer argued that the events here were not something that were linked in any way to the work of the employee. The racial attack was motivated by the employee’s personal opinions, which were quite separate to the work he was employed to do. This argument was not successful. Although the employer clearly did not support what had happened, the employee was in the kiosk because of his work duties, and interacted with the customer because of his work. It could not be argued that this was sufficiently separate from work for the employer to escape liability.

If the events are sufficiently distant from work duties then the employer will not be liable. In Bellman v Northampton Recruitment Ltd [2016], a group of employees had attended the company’s Christmas party and had then moved on to have drinks at a separate place. Two of the employees started arguing, punches were exchanged and one employee fell and hit his head. He suffered a brain injury and will never work again. The employer was not liable, because the drinks were separate to the party and it could not be argued that they occurred in the course of employment.

These principles of vicarious liability are well established, and it is accepted that the employer will be liable for the actions of the employee. However, a recent case is important to note because it has extended the range of what the employer could be liable for.

In Various Claimants v Barclays Bank plc (Dr Bates (deceased) and Barclays Group Litigation) [2017], a number of female employees are alleging that they were sexually assaulted when they attended a pre-employment medical check. These checks took place several years ago, when most of the employees were 16 years old. The doctor who carried out the alleged assaults has since died.

The doctor was not an employee of the bank. He was a contractor, who had been asked by the bank to carry out the medicals. The doctor was given a specified list of issues that he was to check. The High Court has ruled that the bank is vicariously liable for the actions of the doctor.

First, we need to look at the relationship between the doctor and the bank. Although he was not an employee he was acting on behalf of the bank, and his duties were a part of the business activities. The bank had control over what he was required to cover in the medical assessment, and therefore it was found that there was a sufficiently close relationship for liability to occur.

Second, the alleged assaults were so closely linked to the actions that the doctor was required to carry out by the bank that they were seen to be part of the role which was “akin to employment”.

This case suggests, therefore, that employers need to think very carefully about the way that they interact with any contractors who are doing work for them, and how they monitor the actions of the contractors.

It is recommended that all employers start by listing all the contractors that they have working for them. It is important to think widely about this, and to include contractors who might do occasional annual duties as well as those who are working regularly. Then, the employers should think about how the work of these contractors is monitored. Is there a named employee who is responsible for the work that is being carried out? Are there any specific risks, and if so what safeguards have been put in place to minimise those risks?

Last reviewed 16 October 2017