What does Vicarious Liability mean for you?

Vicarious Liability is when you or your organisation has been held responsible for the actions of another person.

For example, if we use this in the context of occurring within a charity or community group; the group may be held responsible for the actions of its employees or volunteers provided that it can be shown that said actions took place in the course of their employment. Unfortunately, this is an everyday risk for charities.

A lot of non profit groups are not aware of this and the fact that they may still be held liable for actions of their employees in the course of their employment. These actions can include, but not be limited to, bullying and harassment, violent or discriminatory acts or even libel and breach of copyright. In addition to this, if clients and customers are deemed to be in the control of the employer, then in some cases it is also possible to take action against the employer for the action of these third parties.

Ultimately, in any case of Vicarious Liability, the crux of the matter is whether the employee was acting in a personal capacity or in the course of their employment. However, this can be difficult to determine.

The recent expansion in the law of vicarious liability has largely been in relation to abuse claims. However, the implications of this expansion goes beyond abuse claims.

Until 2001, case law advised that a local authority or private institution were not vicariously liable for the actions of any staff member who abused a child whilst in their care. For example, a warden in a care home was regarded as authorised to care for children but abusing them was clearly not a part of caring for them because abuse was obviously not authorised by the employer. However, in 2001, the House of Lords passed their judgment in a case known as “Lister v Hesley Hall”. The concept of the authorised act was replaced with a new test being an employer will be liable if the perpetrator’s acts were “so closely connected with the person’s employment that it would be fair, just and reasonable to hold the employer vicariously liable”.

So as an example, using the circumstances of that case, if the warden of a children’s home abused children in his/her care then the employer was liable because, in employing him/her, they put him/her in a position where the close contact that he/she was given with the children through that work created a sufficient connection between the acts of abuse which he/she committed and the work which he/she was employed to do.

That same test of “close connection” continues to this day.

What steps can employers take to avoid vicarious liability for the acts of their employees?

The most important thing is to ensure that they have taken all reasonable steps to prevent such actions or omissions from occurring. For example, keeping an up-to-date equal opportunities policy and providing anti-discrimination training to staff. These will serve to demonstrate a commitment on the part of the employer towards combating such practices in the workplace. This would then reduce the likelihood of an employer being held vicariously liable for any discriminatory acts committed by its employees.

Please refer to the following link to Zurich’s news archive that provides a number of example cases to help put it into real-to-life scenarios: https://newsandviews.zurich.co.uk/news/practical-implications-of-recent-court-decisions-on-vicarious-liability/