Vicarious Liability – Workplace Attacks and Injuries

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

Don’t Bore Us (Get To The Chorus): ACAS Early Conciliation Factsheet for Employers

There have been plenty of articles written in recent months about the new ACAS early conciliation scheme.  Many of these articles explain in some detail about the exclusions and exemptions from “relevant proceedings” which attract the early conciliation scheme.  Other articles report extensively on the impact of the extended time limits and amended limitation periods.

In my view, a lot of this information is not particularly relevant to employers.  Instead employers should merely ensure that, as a minimum, they are aware of the following facts:

1. Prior to proceeding with an employment tribunal claim, an employee requires to first contact ACAS to assess whether or not a dispute can be resolved through conciliation.  A tribunal will reject a relevant claim which does not contain the unique early conciliation reference number.

2. It is mandatory for those lodging claims on or after 6 May 2014 to have completed this process and to have obtained the early conciliation certificate.

3. During the conciliation period, the ACAS officer will explain the way tribunals operate, discuss the options, help the parties understand how the other side views the case, explore resolution without a hearing (including reinstatement or re-engagement where the claim is for unfair dismissal) and relay any proposals the other side may have.

4. ACAS will not make a judgment on the case or likely outcome of the hearing, advise parties whether to accept any proposals, act as a representative or take sides.

5. There is no duty on either party to engage in these discussions and if it appears to ACAS that there is no reasonable prospect of achieving a settlement, ACAS will issue the early conciliation certificate.

6. The early conciliation period can extend the time limit within which an employee to can lodge a claim by up to one month and two weeks.  There is however a process whereby an employer can pre-empt an early conciliation request from a claimant by contacting ACAS first.  An employer who takes this course of action will prevent the need for the employee to proceed with early conciliation and, more importantly, avoid an extension of the time limits for lodging a claim.

7. The early conciliation scheme does not impact upon ACAS’ existing duty to conciliate in claims that have already entered the tribunal system.

It will be interesting to see whether or not some claimants, deterred from lodging tribunal claims due to high fees, will seek to try and resolve matters through this free early conciliation scheme.  By comparison it will be equally interesting to see whether employers elect not to engage with this process and instead choose to wait and see whether the employee chooses to pay the tribunal fees to pursue the claim.

In either case, there is a clear benefit in taking legal advice at the earliest point so that employers are aware of the strengths and weaknesses of any claim as well as their potential liabilities.

Simon Allison 
Partner – Employment Law