vicarious liability

• Vicarious liability imposes a duty on the employer for the negligent and/or criminal conduct of an employee, which injures a third party
• Justifications for vicarious liability:

  • The employer has more money than the employee or has insurance to pay the claim
  • The employer is making a profit out of employees so it is fair the employer should be liable for the employees' conduct
  • The employer should train and supervise employees to ensure the employees' conduct is not negligent or criminal
• The multiple test for determining employment status includes factors like:

  • Is the employer in control of the worker and to what extent?
  • Does the contract specify the worker must carry out the duties or is the worker allowed to delegate work to someone else?
  • Is the worker paid a regular salary or paid on commission?
  • Does the worker have income tax and NI contributions deducted from their wages or do they do it themselves?
  • Does the contract describe the worker as an employee?
  • Does the worker work set hours or can they choose when to work?
  • Does the employer supply tools for the job and/or a uniform or does the worker supply these?
• The employer is only liable for the conduct of an employee during the ‘course of employment'
• Exceptions to vicarious liability:

  • Acting against orders: if the employee is doing their job but against orders in the way they do it, the employer can be liable
  • Acting outside their employment: if the employer causes injury by doing something outside the employment, the employer is not liable
  • Employee acting on a ‘frolic’ of their own: if the employee causes injury or damage to another while doing something outside the area or time of their work, the employer will not be liable
• Employee committing a criminal act: if the employee commits a crime, the employer may be liable if there is a ‘close connection between the crime and the work the employee was employed to do'
• Employee committing a negligent act: if the employee does a job badly, the employer can be liable for their actions which caused injury to another