Employers can be held liable for the acts or omissions of their employees. Vicarious liability of employers derives from various statutes. For example, under the Equality Act 2010, an employer is liable for the actions of any employees which breach the Equality Act and which are carried out ‘in the course of employment’. Whether something is done in the course of employment is a matter for a court or tribunal to determine. Previous cases have given a fairly wide interpretation to the phrase ‘in the course of employment’.
Employers can also be vicariously liable for the wrongful or negligent acts of their employees which fall outwith the scope of the statutory provisions on vicarious liability. This is known as common law vicarious liability and has been developed by the courts over a number of years. An employer can be vicariously liable if there is a sufficiently close connection between the alleged wrongdoing and the employment relationship.
Two recent cases in the realm of common law vicarious liability are worthy of note. In Mahmud v WM Morrison Supermarkets plc, an employee at a petrol station subjected a customer to a vicious assault in the forecourt of the petrol station. The Court of Appeal decided that the employer was not vicariously liable because there was not a sufficiently close connection between the
attack and the employment. The fact that the assault took place on the employer’s premises and during working hours, although relevant, was not conclusive to satisfy the ‘close connection’ test. The Court observed that the employee’s actions did not further the employer’s aims and also noted that the law on vicarious liability had not developed to the point where mere contact between a sales assistant and a customer was sufficient to render the employer liable.
In Cox v Ministry of Justice, the Court of Appeal decided that MoJ was vicariously liable for the negligence of a prisoner in one of their prisons. The prisoner, who worked in the prison kitchen, dropped a sack of rice which resulted in injury to a fellow prisoner. The Court held that although the prisoner was not an employee of MoJ, the relationship was sufficiently ‘akin to employment’ to render MoJ liable. The act was committed as a result of activity conducted on behalf of MoJ and by assigning the task to the prisoner MoJ had created the risk of the incident. The prisoner was under MoJ’s control.
The petrol station case demonstrates that the common law test requiring a sufficiently ‘close connection’ is perhaps not as wide as the statutory test under the Equality Act for acts committed ‘in the course of employment’. The Cox decision demonstrates that an organisation can be liable for the negligence of individuals who are not employees but who are nonetheless under the control of the organisation. Worth bearing in mind for those who engage volunteers.Jack Boyle Senior Solicitor – Employment Law