Vicarious Liability
VICARIOUS LIABILITY
Vicarious liability makes employers liable for their employees’ actions in the workplace or during the course of their work. The central issue in vicarious liability is determining whether the employee was committing the act in the normal course of their employment. For this to be the case, the act must have been one that was authorised by the employer or, alternatively, be sufficiently connected to an authorised act.
The courts may also ask whether the act was a ‘detour’ or a ‘frolic’. In a ‘detour’ act, the employee will be performing the act outside of their normal employment. However, the act would have been committed with the aim of fulfilling the duties of their employment. Employers will be liable in this case. If the act was committed in such a way that it could not be connected to the employee’s normal employment, and they acted completely of their own volition, the employer will not be liable. This is known as a ‘frolic’ act.
Control issues
Defining whether someone is an employee or is under the control of someone other than the employer can occasionally be an issue. This tends to be an important where self-employed contractors are used.
Three tests are used to determine whether someone is sufficiently under someone else’s control:
• The ‘control test- this asks whether the employer decides how the work should be carried out rather than just the ends that need to be achieved.
• The ‘integral to business’ test - this asks whether the employee’s or contractor’s work is integral to the business.
• The ‘economic reality’ test – this asks if the employee or contractor does not assume any economic incentive or risk in performing the action.
If the answer to any of these questions is yes, then the employer is potentially vicarious liable.
Limitations of employer’s liability
Due to the way in which vicarious liability is defined, there are some offences were it is unlikely vicarious liability will apply. If, for example, an employee assaults a customer, it is very unlikely that the employer will be held liable for this as this is a criminal act. Intent is central to all criminal offences.
There are some exceptions. Bailiffs and police officers, for example, often use force during the ordinary course of their employment. The key factor to consider is whether the force used was excessive or not.
Can employers be considered vicariously liable for workplace accidents?
This is a tricky issue. If the employee is committing an act during the usual course of their employment and they have an accident, then the employer is potentially liable for that accident. The advantage of bringing a vicarious liability claim as opposed to a negligence claim is the fact that your employer should have insurance and you can therefore be guaranteed of receiving compensation if you win your claim. If you bring a negligence claim against a colleague, you might not get full compensation, if any at all.