Vicarious liability is where someone is held legally responsible for the acts or omissions of someone else. Therefore vicarious liability can make an employer strictly liable for the acts and failures of an employee if these took place in the course of their employment. The wrongful acts for which an employer can be held vicariously liable for even though committed by an employee will include bullying, discrimination, assaults and harassment, and any loss or damage caused to a third party. In certain circumstances a business can also be liable for the wrongdoing of its customers and clients if they can be shown to have acted under the control of the firm.
The first hurdle to cross for someone wishing to claim against an employer is to show that the wrongdoer was in fact an employee. An employer will not necessarily be liable for the wrongs of contractors and those who are self employed unless there is effective control over how they carry out their work. The element of control by an employer over how the work is carried out by the wrongdoer will always be important to show an employer/employee relationship. It can also be necessary to look at the extent the work being carried out was integrated into the employer’s business and whether the person committing the harmful act had any financial incentive.
An employer will only be liable if the harmful act was carried out in the course of the employment. If the wrongdoer was ‘on a frolic of his own’ the employer could not be liable. Liability will usually come from harm suffered from an act authorised by the employer or an unauthorised way of carrying out an authorised act. There must always be a close connection between the act which caused harm and the employment. It is unlikely to be enough to just show that the employment gave rise to the opportunity to commit the wrong.
Vicarious liability for acts of discrimination are slightly different by virtue of the Equality Act 2010. Liability extends to any discriminatory act carried out by anyone close to the employment. There is however a statutory defence where an employer can show that it took all reasonable steps to prevent discrimination by its employees and have implemented an equality policy and carried out appropriate equality training.
