Legal Q & A: Vicarious liability

By David Bickford, head of employment law at Fladgate Fielder

Q We have a particularly accident-prone employee. We are worried he may
injure other colleagues, despite our best efforts. Would we be liable?

A There appears to be a current trend among the judiciary to pass the
blame on to employers wherever possible. This seems to be based on the economic
reality that employers are insured for such eventualities, whereas the actual
employee who causes the harm probably isn’t.

Under the doctrine of vicarious liability, employers are liable for acts of
their employees done "in the course of their employment". The ambit
of this phrase has been widening, so that even where employees are acting in
breach of specific instructions from their employer or even against the
principles of common sense, the employer may be liable. While the insurance
position remains the way it is, the law on vicarious liability is unlikely to
change.

Q Following our Christmas party – to which only staff were invited – we
have received a tribunal claim from a woman who says she was sexually harassed
by a fellow worker. The party was in a hotel and after work. Are we liable?

A The employer has a duty to protect its staff from harassment on the
grounds of sex. You may be vicariously liable unless you can demonstrate that
reasonable and practicable steps were taken to prevent such harassment.

The courts interpret acts done by a harasser "in the course of the
employment" in the sense that they are used in everyday speech. The fact
that the incident occurred at a social event away from company premises will
not prevent the employer from being liable. It is appropriate in the context of
social gathering to consider whether the circumstances were an extension of the
work relationship.

Two factors the courts will consider are whether or not someone was actually
at work or on the employer’s premises, but they are not conclusive in
themselves. As all of the attendees were your staff, you are likely to be
liable if any harassment took place. Obviously, check that the claim was
launched within the three-month time limit allowed.

Q One of our clients was particularly rude to a member of staff during a
three-day conference and allegedly made some racist comments about him. The
employee is now claiming it is our fault and is seeking legal advice. Should we
have done anything differently?

A Courts have held that where any employer becomes aware of their
workforce being subjected to offensive behaviour, they should consider removing
the member of staff or asking the client or customer to leave.

An employer will be liable if he allows harassment to occur in circumstances
that he can control, whether it happens or not. If a tribunal finds that you
did have sufficient control but failed to exercise it, then you will be liable.

Q After a company social event one of our employees crashed her car, and
when breathalysed, she was found to be over the limit. She is now saying that
we are responsible for her injuries. Is this correct?

A As the law currently stands in the UK, the answer to that question
is almost certainly no. However, in the US, an employee injured in similar
circumstances was awarded £136,000. The court held that the company owed a duty
to the employee to safeguard her from harm, and that this duty extended to
making sure she would not become so intoxicated while on the company premises
that it interfered with her ability to drive home safely afterwards.

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