Vicarious Liability in Employment

Introduction

Lord Steyn stated that vicarious liability is a legal responsibility imposed on an employer for a tort committed by an employee in the course of his employment.

The first issue in the current case is whether or not EIC Ltd will be liable for the act of the driver who is under ‘zero hours’ contract. The second issue is whether or not the activities entrusted to the Site Manager is closely connected with his wrongful conduct.

Close connection test and relationship ‘akin to employment

Vicarious liability renders an employer strictly liable for the tortious behaviour of an employee or a worker when acting in the course of their employment.

The doctrine of vicarious liability is also extended to liability in ‘relationships akin to employment’, which shows a close in character to an employee-employer relationship and which is just and fair to hold the employer vicariously liable.

The Supreme Court applied this test to a case involving brothers working for a school, but acting according to the directions and rules of the De La Salle Institute. The Supreme Court held that the relationship between the brothers and the Institute bears a close characteristic to an employment than that between a priest and the bishop.

The Supreme Court took similar position on other cases. In a case where a prisoner working in a prison kitchen injured a claimant due to his negligence which carrying out his assigned, the Supreme Court identified the relationship between a prisoner, whose work was a part of the prison operation and the prison authorities as one ‘akin to employment’. His work furthers the aims of the prison. His acts were within the activities assigned and were under the direction of prison staff. The prison authorities will be vicariously liable for prisoner’s negligent acts.

The Supreme Court laid down a two-state approach in a case: i) whether or not the relationship can give rise to vicarious liability; and ii) whether or not a close connection links the relationship and the act or omission. This case concerned an employee abusing, threatening and physically assaulting a customer. The Supreme Court dealt with the issue of whether the appalling conduct of the employee was ‘closely connected' to his job of seeing that the petrol pumps and the kiosk were in good running order and to serve the customers.

The claimant's argued that the Supreme Court must determine whether or not the employee was acting in a representative capacity with the basis that a company operates through human agents and that the test should be whether or not a reasonable person would consider the employee to be acting in the capacity of a representative at the time when he commit the tort. The Supreme Court rejected the argument stating that the test of representative capacity is vague and held that the employee’s conduct was within the course of his employment.

There is a further argument that the test of ‘close connection' does not describe: i) sufficiently the nature of that connection; and ii) precisely how close the connection needs to be. In this context, Lord Toulson provided a simpler test requiring consideration of two matters. The first test is to determine the functions or ‘field of activities’ that are entrusted to the employee, which indicates the nature of the job. The second test is to determine a sufficient connection between the wrongful conduct and the position of the employee to make it `right' to held the employer liable.

In regard to the claim of the local resident

The issue is whether the relationship between the truck drive and EIC Ltd shows a close in character to an employee-employer relationship. In this case, the truck driver was working according to the directions and rules of EIC Ltd while he was delivering the building materials. The driver’s work was a part of building projects of EIC Ltd. His work furthers the aims of the EIC Ltd and was within the assigned activities of delivering the materials. Hence, the worker relationship with EIC Ltd is ‘akin to employment' and EIC Ltd will be vicariously liable for his negligent acts.

In regard to the pedestrian for her injuries

In this case, since the Site Manager is an employee, the doctrine of vicarious liability will apply and EIC Ltd will be liable. The Site manager represents the company. His job is managing the construction site and there is a sufficient connection between this conduct and the position of the Site Manager. As such, EIC Ltd is liable for his acts.

Steps to reduce risk of future claims

Based on a recent Supreme Court ruling in 2020, which concerned training, supervising and monitoring the employees, EIC Ltd should train its employees and contract workers. It should lay down safety policy measures, including site rules for employees and workers to follow. EIC Ltd must also ensure training for safety is up to date and refreshed. Its measures must ensure the employees understand and follow their legal responsibilities and standards expected out of them.

Continue your journey with our comprehensive guide to Unraveling Employment Status.

Cases

Child Welfare Society Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1

Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660

Lister and Others v Hesley Hall Limited [2001] UKHL 22 (3rd May 2001) (HL)

Mohamud v WM Morrison Supermarkets plc. [2016] UKSC 11, [2016] AC 677

Books

Peel E and James Goudkamp, Winfield & Jolowicz on Tort (Sweet and Maxwell 2014)

Reports

Giliker P, ‘Vicarious liability in the UK Supreme Court’ (2016) 7 UK Supreme Court Yearbook 152-166 accessed on 8 march 2021