Is our college vicariously liable if one of our tutors hit a student's father?
I know that the employer is responsible for anything that the employee does in the course of work. However, what happens if the employee does something that is outside of work? My organisation is a Further Education College. We had a student who failed an assessment, and their father was very unhappy about the mark that they were given. The father came to the college and spoke to the tutor and got very aggressive. The tutor became very frustrated and hit the father.
The father has filed a complaint with the police, and also says that he is going to 'make a claim' against the college. However, it seems to us that the assault was more about the tone of the conversation rather than the failed assessment, hence we wonder if the college is vicariously liable.
You are correct that the employer is responsible for anything that the employee does in the course of his work duties. This was recently explored by the Court of Appeal when they considered two cases.
In the first case (Weddall v Barchester Healthcare Ltd ) Weddall was a Deputy Manager at a care home. An employee had not turned up for work, and he phoned Mr Marsh and asked him to work. Marsh was drunk and refused to attend. A short time later he biked to the care home, saw Weddall in the front garden and violently assaulted him.
In the second case (Wallbank v Wallbank Fox Designs Ltd ) Wallbank was Managing Director of a factory and Brown worked for him. Wallbank thought Brown was working slowly when they were working together and told him to 'come on'. Brown assaulted Wallbank which resulted in him fracturing vertebrae in his lower back.
In determining the liability of the employer the Court of Appeal noted that the question was the extent to which the employee's acts were related to the job that they are employed to do. In the Weddall case the Court concluded that going to the care home around 20 minutes after the conversation was independent of work, and hence the assault was not connected with employment. In the Wallbank case the assault followed, almost immediately, a work instruction and was clearly a response to the instruction. Hence, the Court of Appeal found that the employer was vicariously liable in the Wallbank case, but not in the Weddall case.
In your situation, we need to ask about the extent to which the employee's acts were related to the job that they are employed to do. It seems that the father would not have been there, and the conversation would not have happened, if the tutor had not been teaching at the college. It also seems that there was a direct link between the conversation about the assessment and the assault. It seems likely, therefore, that the college is vicariously liable for the assault.
You should also note that assaulting the father of a student may amount to gross misconduct, and you are advised to apply your disciplinary procedure accordingly.