Recent Cases on the Vicarious Liability of Employers

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Thursday 20 December 2018

A couple of recent cases have raised eyebrows. They were on the subject of vicarious liability. But what exactly is “vicarious liability”? This is where employers are liable for the actions of their employees. A distinction is drawn between an employee acting in the course of their employment and an employee on a frolic of their own. In the latter case the employer is, unsurprisingly, not vicariously liable.

The frolic of their own test was established in 1834 when Mr Joel was knocked down by a horse and cart. This cart was being driven by Mr Morison’s agent who was going about Mr Morison’s business but had taken a quick detour to visit a friend. The Court held that Mr Morison was liable for the injuries his agent had caused because the agent was on his “master’s business” albeit it on a detour. Mr Morison had to pay Mr Joel damages of £30.

There is far more at risk nowadays, especially when it comes to data protection. The case of Morrison Supermarkets v Various Claimants brings the concept, and the risks, up to date. Mr Skelton was employed by Morrison as a senior IT internal auditor. He had a grudge against his employer and disclosed online the personal details of thousands of Morrison’s employees. It was held he was acting in the course of his employment rather than on a frolic of his own, and the supermarket was fined a substantial amount. The message to take away from this? Employers should insure against data breaches.

And as we approach the season of office parties, the case of Bellman v Northampton Recruitment Ltd should give any employer, and indeed every employee, pause for thought. This is the case of a Christmas drinks party at an hotel which went tragically wrong. At three in the morning the conversation turned to a new employee whose recruitment was not popular. He was being paid more than anyone else. The MD, Mr Major, decided to lecture the partygoers. He told them he owned the company, he was in charge, he could do whatever he liked. Another employee, Mr Bellman, interjected with an entirely reasonable comment and Mr Major punched him causing brain damage. It was held Mr Major was acting in the course of his employment. He was the “directing mind and will” of the company which had organised the party, paid for many of the drinks and laid on the transport. Mr Major had taken the opportunity to exercise his authority over his subordinates. He was not on a “frolic of his own” but in the course of his employment, and the employer was found to be vicariously liable.




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