Liability for staff who overstep the mark

A recent incident at a Wal-Mart supermarket in the US has served as a reminder to UK employers that they must not only protect their own employees, but also safeguard the health and safety of third parties.

A suspected shoplifter in Texas was caught and restrained on the scalding concrete of the supermarket car park by one of the store’s security staff. Despite the pleas of witnesses and the fact that the alleged shoplifter was already constrained by handcuffs, the security guard refused to release the man, who died as a result. His family is now considering taking legal action against Wal-Mart and the security guard.

Unfortunately, incidents such as these are not just the concern of US firms, as UK employers may also be liable when an employee ‘oversteps the mark’.

Under the UK common law principle of vicarious liability, employers can be liable for personal injuries inflicted on a third party by its staff, where the employee’s actions have been carried out in the course of employment. Until the 2001 case of Lister v Hesley Hall – which concerned the sexual assault of boys at a boarding school by their warden – courts focused on whether an employee’s actions had been authorised to decide whether they had been carried out in the course of employment. In cases where their actions had not been authorised, this test caused problems. However, since Lister, the courts attention shifted to address whether there is a close connection between the employee’s actions and the nature of their work.

While employers will not be liable where an employee goes off on a ‘frolic’ of their own (no doubt Wal-Mart would support this view), it is surprising how willing the UK courts can be to conclude that an employee’s actions are closely connected to their employment. For example, in Mattis v Pollock, where an unlicensed doorman returned to a nightclub and stabbed a club-goer, his employer was still liable for his actions, even though the stabbing had taken place sometime after an initial skirmish. The court decided that the chain of events was connected, and was also persuaded by the fact that the employer had actively encouraged aggression in its employee’s conduct.

Liability may also not be restricted to the traditional employee model. Although employers are not usually liable for the wrongful acts of independent contractors, it would be reckless to assume that this is always the case. In some circumstances, an individual can be the ‘deemed’ employee for the purposes of vicarious liability. In the recent case of Hawley v Luminar Leisure plc, which used a security provider to supply doormen for its clubs, the company was held liable when a doorman assaulted a customer. Although there was no dispute that the doorman was employed by the security provider, the company had sufficient day-to-day control to be deemed liable.

Ultimately, where an employer is held to be liable, personal injury claims will usually be covered by an employer’s liability insurance. However, with the escalating cost of insurance and the inevitable publicity resulting from these types of incidents, employers should seek to protect their businesses. One approach could be to introduce a policy that sets out the type of conduct expected from employees who have contact with customers/suppliers etc.

Any policy should clearly specify the types of conduct that will not be tolerated, and the sanctions imposed. By doing so, the boundaries for staff behaviour will be clearly defined. This reduces the likelihood of employees acting outside of the scope of their employment, and endangering the business and its reputation.

Sarah Clayton

How to avoid vicarious liability?

  • Introduce a policy in relation to employee conduct.
  • Provide clear guidelines to independent contractors for acceptable behaviour.
  • Provide practical training to help employees deal with incidents safely.
  • Ensure managers are vigilant in relation to your staff’s health. Stress may affect an employee’s judgement.
  • Incidents are more likely to happen at high-risk events, such as concerts and parties during the busy seasonal period, so ensure staff have extra support.

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