Stallard Kane News

Thursday, 08 December 2011 11:53

EMPLOYERS LIABILITY             NOV/DEC 2011

Common law

“Vicarious liability” means liability for the acts of a third party. This common law “duty of care” applies to all of us as individuals, as well as employers and organisations. To fulfil the duty of care you must take reasonable care to avoid causing harm to others. If you fail to do this, you have been “negligent”. Therefore, as an employer; you could be liable for the acts of your employees.

Extent of responsibility

There clearly has to be a limit. Just because an employee is in paid working time, it doesn’t mean that their employer is responsible for absolutely everything they get up to. For example, if your employee robs a bank or has a fight with a relative, it doesn’t make you responsible for the consequences, however; most circumstances are less black and white.

Note. Each case is looked at on its merits to determine whether the employee’s negligent act was committed “during the course of their employment”.

Example

Mattis v Pollock 2003 was a key case in understanding where the line should be drawn. Mr Pollock (P) was a nightclub owner who employed a bouncer, Mr Cranston ©. C assaulted a customer, who had supposedly been barred from the club, but was fought off by other customers. He went away and returned with a knife brought from home. He came across the customer outside the nightclub and stabbed him in the back. The injuries resulted in paraplegia

Connection with the job

At the original trial to determine liability for damages P successfully argued that C wasn’t acting within the course of his employment. But the Court of Appeal judge overruled this decision.

Even though the stabbing hadn’t taken place on the premises, it was connected with the earlier incidents in the nightclub. The court also placed weight on evidence that P knew C tended to be violent and had positively encouraged the behaviour in his instructions to C.

Note. This case was quite extreme, but it’s usually much clearer than this as to whether someone was acting in the course of their employment; in other words, were they at work at the time and undertaking a task which was conceivably part of the job?

Avoiding it?

You can’t completely avoid vicarious liability but it can be controlled.

Tip 1. Running a tight ship will limit the risk of claims arising from the acts or omissions of your employees. Give clear instructions to staff about safe working and, if necessary, take disciplinary action to reinforce the behaviour you expect.

Tip 2. Vicarious liability for the acts of employees is covered by Employers’ Liability insurance, which is a legal requirement. So if you think that your business could be held liable for the acts of another, contact your insurer immediately.