Vicarious Liability

1. What is the definition of vicarious liability?

Vicarious liability occurs where the law holds one person responsible for a tort committed by another — for example, an employer may be liable for a tort committed by their employee.

2. What must be established first for vicarious liability to apply?

The court must first establish that there is an employer–employee relationship.

3. What tests have been developed to determine an employer–employee relationship?

Tests have been developed such as the control test (Walker v Crystal Palace FC), integration test (Whittaker v Minister of Pension) and the multiple test (Ready Mix Concrete).

4 (OIR). What does the control test look at?

This test looks at whether the employer had the right to control what the worker did and how they did it.

5 (OIR). What does the integration test consider?

This test considers whether the worker is fully integrated into the business, rather than merely being an accessory to it.

6. What is the multiple test?

The multiple test combines the control and integration tests with other factors such as the existence of a contract of employment, payment of tax and National Insurance, and the level of independence in how and where work is carried out.

7. What was decided in Barclays Bank v Various Claimants (2020)?

In Barclays Bank PLC v Various Claimants 2020, the Supreme Court stated that where the distinction is not clear between an employee and a self-employed contractor, the 'five policy criteria' can be applied.

8. What do the five policy criteria decide?

This decides whether it is fair, just and reasonable to impose vicarious liability for torts committed by a person 'akin to an employee'.

9. What factors are considered under the five policy criteria?「」

As well as existing tests, this would consider whether the employer would be in a better position to compensate, such as through insurance; whether the tort would have been committed as a result of activity on behalf of the employer and whether the employer, by engaging the employee to carry out the activity, would have created the risk of the tort being committed.

10. When is an employer vicariously liable for an employee’s negligence?

Secondly, an employer is vicariously liable only for negligence committed 'in the course of employment'.

11. When is an employer liable for negligent performance of authorised duties?

The employer will be held vicariously liable for damage if an employee is carrying out authorised duties, but in a negligent way (Century Insurance).

12. When is an employer liable for forbidden acts by an employee?

The employer remains liable even if they have expressly forbidden the act of their employee that causes the damage (Limpus v London General Omnibus).

13. When is an employer not liable for unauthorised acts?「」

However, if the employee's act is unauthorised, the employer will not be held vicariously liable (Beard v London General Omnibus).

14. What was decided in Mohamud v Morrisons (2016)?

In Mohamud v Morrisons 2016, the court adopted the “close connection” test. This examines the closeness of the connection between the work the employee was employed to do and the tortious conduct.

15. What is the first part of the close connection test from Mohamud v Morrisons?

It asks what function or field of activities have been entrusted by the employer to the employee (i.e. what was the nature of the job).

16. What is the second part of the close connection test from Mohamud v Morrisons?「」

It asks if there was a sufficient connection between the position in which the employee was employed and the wrongful conduct, to make it right for the employer to be held liable.

17 (OIR). When might an employer escape or incur liability for employees giving lifts?「」

If the employer has banned giving lifts to third parties, he may escape liability (Conway v Wimpey). However, the employer will become liable if his employee gives a lift to someone to help him with his employer’s business (Rose v Plenty).

18 (OIR). When might an employer escape or incur liability for employees taking detours?「」

The employer will not be liable if the employee goes on a significant detour (Storey v Ashton), but he will be if the detour is insignificant (Hemphill v Williams).

19 (OIR). When might an employer be held responsible for an employee who commits a crime during work?「」

Employers might be held responsible for an employee who commits a crime during his or her work if there is a close connection between the crime and what the employee was employed to do (Lister v Hesley Hall).