Vicarious liability is the legal concept that provides that a party can be held liable for the acts or omissions of another party. In an employment context it means that an employer can be found liable for the acts or omissions of their employee.
Whilst cases are fact sensitive, two recent examples - Cox and Mohamud - make for cautionary reading for employers when considering potential liability for employees’ actions.
Given their authority, Supreme Court judgments are always interesting reading. The decisions handed down on 2 March 2016 in Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets plc are no different, and may impact significantly on the scope of an employer’s vicarious liability.
The Cases – Cox & Mohamud
Cox concerned a catering manager who worked at a prison in the kitchens, with prisoners. She was injured through accidental negligence of a prisoner, who dropped a sack of rice on her when she was bending down. Mrs Cox attempted to argue that the Ministry of Justice (MoJ) was vicariously liable for the negligence of the prisoner, although the individual was not an employee of the MoJ.
Eventually, the Court of Appeal held that the relationship that the MoJ had with the prisoner was close enough to that of ‘employment’ so as to make it just that the MoJ be vicariously liable.
Mohamud was more closely aligned with a typical employment relationship. An individual – who had made an innocuous request to have some documents printed from a USB stick – was, in response, racially abused and assaulted by an employee of the supermarket in the petrol station premises of the supermarket where the employee worked. Initially it was held, and then upheld by the Court of Appeal, that the actions of the employee were beyond the scope of their employment and there was no vicarious liability. There was not a sufficient close connection between the employee and his actions to give rise to a liability to his employer.
The respective decisions of the Court of Appeal in these cases led to further appeals being made to the Supreme Court.
The Supreme Court Decisions
In short, the Supreme Court dismissed the appeal of the MoJ in Cox and allowed the appeal in Mohamud with the result that vicarious liability was imposed. Unanimous decisions were given in both cases.
In Cox, it was recognised that the principles and tests for vicarious liability can be extended to the modern workplace in many situations where an individual is part of a businesses workforce without formally being employed by the business. The view was taken that prisoners working within the kitchens at a prison fell in to this category.
This decision may be significant due to the fact that the Court held that an employment contract was not necessary for a finding of vicarious liability, which may widen the scope of the test for future cases. However, while the Court dismissed the appeal on that basis, they did recognise that the extension beyond the employment relationship is limited (such as where the actions in question can be attributed to the conduct of a recognisable independent business).
The Supreme Court did not take the same view in Mohamud as the Court of Appeal. Instead, they concluded that the employer was vicariously liable for the actions of the employee in question. Their reasoning was based on tests set down in previous case law. The Court focused particularly on what is known as the ‘close connection’ test.
This test focuses on a broad view of the job given to the employee and considering whether the connection between their position and actions justify the employer being liable for their actions. The principle which is considered is that of social justice. In the view of the Court there was a sufficiently close connection for the employer to be liable.
The individual’s role was to attend to customers of the business. He was trying to remove the individual from his employer’s premises before resulting to violence. The Court viewed that this was within the field of activities of his role and that, despite being a gross abuse of his authority, it was connected sufficiently to his employment.
Implications for employers
It seems that from these cases, courts will be willing to extend the scope of vicarious liability through a generous interpretation of the case law. The Cox case provides for liability even for those individuals who are not employees or workers, and the Mohamud case provides for liability even for actions of an employee that seemingly go far beyond the scope of their employment.
In light of these decisions, employers should be aware that they may face claims from individuals relating to situations which, at first blush, would appear to fall outwith their responsibility. There will no doubt be some further case law in this area as a consequence of the decisions.
Get in touch
If you are unsure of how these decisions may affect your business, then please contact a member of our employment team.