What Is Vicarious Liability And How To Avoid It

When an employee commits a wrongful act, their employer could be held responsible for their actions in the form of various legal claims against the organisation. In this article, we look at vicarious liability and what employers can do to prevent this in the context of potential employment claims.

What is vicarious liability?

Vicarious liability in an employment setting, refers to an employer’s liability for the acts of its employees.

A good example of this would be if an employee makes a negative comment to a colleague in connection to a particular protected characteristic under the Equality Act 2010.

The colleague who has received the negative comments may then raise an Employment Tribunal claim against the employee, but also against the employer. In this scenario the employer is likely be held to be responsible for the discrimination. However this may be avoided if they can show that they have done enough to prevent the acts of discrimination, harassment or victimisation happening in the first place.

Avoiding vicarious liability

To avoid vicarious liability claims the employer needs to be able to show that they have taken ‘all reasonable steps’ to prevent wrongdoings from happening.

An effective way of implementing this is having policies in place. These may include anti-bullying and harassment and equality policies.

Such policies inform employees of the conduct that is expected of them when working and representing the company. They also normally explain what is not permitted and what can constitute breaches of the policies. The policies can also explain to employee what they should do if they witness certain behaviors or acts of discrimination and also how an employee can complain. These policies can show the employers adherence to legislation and best practice but can also be used in providing steps to prevent wrongdoings.

Another effective way in avoiding vicarious liability is for employers to conduct periodic training sessions for employees which covers the policies.

By providing training and keeping records of who attended, an employer can show that they have consistently taken steps to ensure that all employees are aware of the policies they have in place, the behaviour that is expected of them, and that which is not allowed.

Employers are advised to have policies and conduct training to be in the best position to successfully defend vicarious liability claims, and claims for discrimination generally.

Recent case

Employers can also be held vicariously liable for their employees actions which were directed to someone else.

In a recent case, the Court of Appeal had to determine if a company should be held vicariously liable for the actions of one of its employees who committed an act of wrongdoing on a work site towards someone who was not employed by them.

This case was Chell v Tarmac Cement and Lime Limited 2022.

Details of the case

Andrew Chell, the Claimant, was employed by Roltec Engineering Limited as a Site Fitter. He worked at a site which was run by another company, Tarmac Cement and Lime Limited.

This company also had Site Fitters working on the same site. With two set of Site Fitters working in close proximity to each other, tension began to rise.

A Site Fitter, who was employed by Tarmac Cement and Lime Limited, threw a hammer to strike a target located close to the Claimant’s ear. This caused the Claimant to sustain hearing loss and tinnitus. It was determined that the action of throwing the hammer was done with the intent of playing a practical joke on the claimant.

The Claimant argued that Tarmac Cement and Lime Limited were vicariously liable for the actions of their employee and the injury he sustained while working on their site. The target was a pellet that was brought onto the site by an unknown employee. It was not property of Tarmac Cement and Lime Limited and deemed to be unconnected to any instructions given to the employee in connection with carrying out his employment.

Tarmac Cement and Lime Limited’s Site Manager were informed only once of the tensions between the Site Fitters. These tensions never mentioned acts of violence at any point. The employee in question and the Claimant worked on opposite sides of the site. The tensions were put down to the Roltec Engineering Limited staff working quicker than Tarmac Cement and Lime Limited.

The Court of Appeal had to consider if there was sufficient connection between the employee’s wrongful act and what the employer/employee relationship was.

The Court’s decision

The Court dismissed all claims. This was on the basis that although horseplay, ill-discipline, and malice could be a mechanism for causing a reasonably foreseeable risk of injury.

The actions of the employee who threw the hammer were not connected to the employment relationship in any way and therefore Tarmac Cement and Lime Limited could not be held vicariously liable for the actions of its employee.

Conclusion

This case highlights the importance of having policies and procedures in place. These should inform employees the behaviour that is expected of them when working on the company’s premises, and when working in collaboration with another company.

For further information about the matters discussed in this article, please contact our Employment Law Team.

Amy Hallam
Head of Employment
01246 564012
amy.hallam@brmlaw.co.uk

Jessica Eyley
Trainee Legal Executive
01246 560587
jessica.eyley@brmlaw.co.uk

Georgia Jeonney
Employment Paralegal
01246 564035
georgia.jeonney@brmlaw.co.uk