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Employers’ vicarious liability: far wider now than you might think

14 November 2018

Most employers will be aware, based on a number of recent high profile court decisions in the ‘gig economy,’ that worker rights are now being conferred on a wide cross section of freelance workers.

What is perhaps less well appreciated is another significant judicial trend over recent years of fixing employers with vicarious liability – holding an employer liable for the actions of its employees/workers who commit unlawful acts in the course of their employment.

Such liability is now being imposed in a wide range of circumstances and covering the acts or omissions of not just their employees and workers, but also persons who may otherwise be regarded as being independent contractors.

In Morrison Supermarkets Plc v Various Claimants [October 2018], the Court of Appeal dismissed the supermarket’s appeal that it should not be held vicariously liable for an employee publishing the data of thousands of Morrison’s employees online.

The Court decided that the Data Protection Act 1998 did not stand in the way of holding an employer vicariously liable and that the nature of an employee’s job and whether this job has a sufficient connection with the misconduct is relevant in determining vicarious liability. The employee was found to have been carrying out acts which did have a sufficient connection to his job and, as a result, it was Morrisons rather than ‘the data controller’ who were liable.

A striking feature of the case was that the strict liability was imposed despite the fact that the supermarket was the intended ‘victim’ of this misconduct by a rogue employee.

In Mohamud v WM Morrison [2016], a customer was physically assaulted by a petrol pump assistant, yet the employer was held liable regardless of the employee’s motivations. Ultimately, the Supreme Court ruled that vicarious liability comes down to whether there was a sufficient connection between the employee’s job and their misconduct and motives do not play a part in this determination.

In Barclays Bank Plc v Various Claimants [July 2018] the issue was whether the bank should be held liable for sexual assaults committed by a doctor during medical examinations of the bank’s current and prospective employees.

The Court of Appeal had little hesitation in ruling that the law of vicarious liability had developed in recent times and it was no longer a defence for employers to say that wrongdoers were independent contractors.

If the acts in question are carried out by independent contractors who are performing operations intrinsic to an employer’s enterprise, such as carrying out medical examinations, and are doing so under the direction of the employer then the employer will still be held liable.

Employers must now appreciate that there is a far greater prospect that they will be held vicariously liable for a wider variety of unauthorised acts carried out by not only their employees and workers, but also their independent contractors.

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