Vicarious Liability
- teachlawhub
- 22 hours ago
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What Is Vicarious Liability?
Vicarious liability arises where one person (usually an employer) is held legally responsible for the torts committed by another (usually an employee). Most commonly, an employer becomes liable for torts committed by employees during the course of employment.
Why Does the Law Impose Vicarious Liability?
The courts justify vicarious liability for several reasons:
Employers benefit from employees’ work.
Employers train and supervise employees.
Employers create risks through business activities.
Employers are more likely to have insurance or sufficient money to compensate.
A Tort Must Be Committed
There must first be an actual tort before vicarious liability can arise.
This can include:
Negligence
Assault, Battery
Harassment
Sexual abuse
Fraud
The Two-Part Test
Modern vicarious liability generally involves a two-stage test developed through cases such as Barclays Bank plc v Various Claimants (2020) and Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent) (2023);
There is a relationship of employment, or something sufficiently similar to employment.
The tort is closely connected to that employment relationship.
Element 1: Relationship of Employment
The first stage is deciding whether the tortfeasor is an employee or in a relationship similar to employment. To determine whether someone is an employee, courts apply several tests.
Traditional Employment Tests
1. Control Test - The control test examines whether the employer controls how the worker carries out their work.
The more control the employer has over how the work is done, when it is done, where it is done, the more likely the worker is an employee.
Key Case: Mersey Docks & Harbour Board v Coggins & Griffiths (1947)
Brief Facts
A crane driver and crane were hired out to another company. The issue was which company controlled the worker when an accident occurred.
Legal Principle
The employer with the greatest control over the employee’s work was considered responsible for vicarious liability purposes.
2. Integration Test - The integration test asks whether the worker is integrated into the employer’s business or merely providing independent services. If the worker is fully part of the organisation and contributes directly to its operations, they are more likely to be an employee.
Key Case: Stevenson Jordan & Harrison v Macdonald & Evans (1952)
Brief Facts
The court examined whether a worker was part of the organisation itself or an external contractor.
Legal Principle
A worker integrated into the business structure is more likely to be an employee.
3. Economic Reality Test - Modern courts mainly use the economic reality test, also called the multiple test. Rather than focusing on one factor, the court examines the whole working relationship, including:
Control,
Method of payment,
Financial risk,
Provision of equipment.
Key Case: Ready Mixed Concrete v Minister of Pensions and National Insurance (1968)
Brief Facts
A lorry driver claimed to be self-employed, but the court examined his working arrangements in detail.
Legal Principle
Employment status depends on the overall economic relationship between the parties.
This remains the main modern test used by courts.
Relationships “Akin to Employment”
Where employment tests are inconclusive, the courts consider whether the relationship is functionally similar to employment. Lord Phillips’ criteria in Various Claimants v Catholic Child Welfare Society (Christian Brothers, 2012) may be helpful to determine relationship:
a) Employer is more likely to have means to compensate and can insure against liability.
b) The act was committed as a result of activity taken on behalf of the employer.
c) The activity was part of the business activity of the employer.
d) Employer’s decision to employ the tortfeasor created the risk of the act.
e) The tortfeasor was under a degree of control by the employer.
Example Cases on Relationships Akin to Employment |
Foster Carers - Armes v Nottinghamshire County Council (2017) Brief Facts A woman suffered abuse by foster carers arranged by a local authority. Legal Principle The local authority was liable because foster care formed part of its child care functions and the carers operated within that system. |
Prisoners Working for the Prison - Cox v Ministry of Justice (2016) Brief Facts A prisoner working in a prison kitchen negligently injured a prison employee. Legal Principle The prison service was liable because the prisoner’s work was part of the prison’s functioning and carried out under prison control. |
Independent Contractors
Employers are usually not vicariously liable for independent contractors because they are self-employed and work under a contract for services rather than a contract of service. Independent contractors usually control how they carry out their work and operate their own business.
Key Case: Barclays Bank plc v Various Claimants (2020)
Brief Facts
Barclays Bank hired a self-employed doctor to carry out medical examinations on employees and job applicants. During these examinations, the doctor sexually assaulted several claimants.
Legal Principle
The Supreme Court held that Barclays Bank was not vicariously liable because the doctor was a genuine independent contractor and not in a relationship akin to employment. The case confirmed that vicarious liability will usually not apply to true independent contractors.
Shared Employers
In some situations, two employers may both exercise sufficient control over a worker to be jointly liable.
Element 2: Tort is Closely Connected
The second stage is deciding whether the tort occurred during the course of employment. Courts first developed the traditional Salmond test before later moving toward the modern close connection test.
The Traditional Salmond Test
Under the Salmond test, employers are liable where:
The employee commits an authorised act, or
The employee commits an unauthorised way of carrying out an authorised act.
This means employers may still be liable even where employees break rules while doing their jobs.
Situations Where Employers ARE Liable | |
Authorised Acts - If the employee is carrying out duties they were employed to perform, the employer will usually be liable. | Rose v Plenty (1976) Brief Facts A milkman employed a young boy to help deliver milk despite instructions not to do so. The boy was injured due to the milkman’s negligent driving. Legal Principle The employer was liable because the employee was still performing authorised work duties. |
Unauthorised Methods of Doing the Job - An employer may still be liable where an employee performs their job improperly or disobeys instructions while carrying out authorised work. | Limpus v London General Omnibus (1862) Brief Facts A bus driver raced another bus despite being told not to. Legal Principle The employer remained liable because the driver was still carrying out his employment duties. |
Negligent Performance of Duties - Employers are commonly liable where employees perform their duties carelessly or negligently during work activities. | Century Insurance v Northern Ireland Transport Board (1942) Brief Facts A petrol tanker driver lit a cigarette while unloading petrol, causing an explosion. Legal Principle The employer was liable because the negligent act occurred during authorised employment activities. |
Situations Where Employers Are NOT Liable | |
Frolic of Their Own - An employer will not be liable where the employee abandons their work duties and acts entirely for personal reasons. | Hilton v Thomas Burton (1961) Brief Facts Employees went on an unauthorised journey during a break and caused an accident. Legal Principle The employer was not liable because the employees were acting independently of their employment. |
Acts Completely Outside Duties - Where an employee acts entirely outside the role they were employed to perform, the employer will not usually be liable. | Beard v London General Omnibus (1900) Brief Facts A bus conductor attempted to drive a bus and caused an accident. Legal Principle The employer was not liable because driving was not part of the conductor’s authorised duties. |
The Close Connection Test
Modern courts now mainly use the close connection test, particularly for intentional torts such as assault or abuse. The court asks; Is the tort so closely connected to the employee’s duties that it would be fair and just to hold the employer liable? This approach recognises that intentional wrongdoing can still arise from employment responsibilities.
Key Cases Passing the Close Connection Test |
Brief Facts A boarding school warden sexually abused children under his care. Legal Principle The employer was liable because the abuse was closely connected to the warden’s duties and position of trust. |
Brief Facts A petrol station employee assaulted a customer after being asked for assistance. Legal Principle The employer was liable because the assault followed directly from the employee’s interaction with the customer, which formed part of his assigned duties. |
Brief Facts An employee suffered workplace bullying and harassment by a manager. Legal Principle Employers can be vicariously liable for harassment connected to employment. |
Brief Facts A managing director assaulted an employee after a Christmas party during a discussion about work matters. Legal Principle The employer was liable because the managing director was acting in his managerial role during the incident. |
Limits on Close Connection
There must be a genuine connection between the tort and the employment role. Simply providing an opportunity for wrongdoing is not enough.
Key Cases Not Passing the Close Connection Test |
Brief Facts An employee leaked payroll data online to deliberately harm his employer. Legal Principle The employer was not liable because the employee’s actions were motivated by personal revenge and fell outside the course of employment. |
Brief Facts A woman argued that a religious organisation was liable for abuse committed by an elder. Legal Principle The organisation was not liable because the abuse was not sufficiently connected to the role assigned by the organisation. |
Vicarious liability allows courts to ensure injured claimants can obtain compensation where wrongdoing occurs through employment relationships. Modern courts increasingly focus on fairness, enterprise risk, and whether the tort is closely connected to the employee’s role.
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