Understanding Vicarious Liability In Making A Claim For Injuries In The Workplace

What is vicarious liability?

Vicarious liability is a form of secondary liability, whereby a party is held liable for the negligent actions or omissions of another party for whom they are responsible.

Most commonly vicarious liability is associated with employer-employee relationships, however, there are other situations where there is vicarious liability, such as when a hospital is held responsible for the actions of a doctor.

Who is responsible for injuries suffered in the workplace?

If an injury occurs in the workplace, an employer may be held liable for actions or omissions which happen while an employee is performing his duties within the scope of his employment.

If an employee injures another employee or a third party whilst undertaking his duties as part of his job, then the employer may be responsible through vicarious liability. The injured person (the “claimant”) would make a claim against the employer.

What does “in the course of employment” mean?

The employer must have in some way have given authorisation or directed the act, which caused the injury, or, at least, be in some way linked to it.

What must be proven to find vicarious liability?

It must be proven by the claimant that the employer required the employee to work under the authority of the employer.

It must also be proven that the employer has control over the employee, and that when the incident occurred, the employee’s actions fell within the scope of his employment.

Actions by the employee within the terms of his employment fall within the scope of employment.

When is an employer vicariously liable for another’s wrongdoing?

In determining this, the Court follows a two-stage test. In its judgement handed down on 26 April 2023 in the Barry Congregation case, the Supreme Court confirmed the two-stage test which determines where vicarious liability can be found, which followed the judgement given in Various Claimants v Wm Morrison Supermarkets Plc in 2020.

Firstly, the relationship between the wrongdoer and the party being held vicariously liable must have been one of employment or ‘akin to employment’.

There continues to be no vicarious liability where the wrongdoer is an independent contractor.  Although independent contractors perform work for someone else, they are not legally recognised as employees and thus do not work within the scope of employment for the organisation they provide their services to.

In determining whether a person who caused another an injury is a contractor or an employee, there are various factors that are considered, such as how much control the employer has over the worker, how he is paid and how important the work is to the organisation it is being carried out for.

Also, not within the scope of employment are illegal acts. Employers usually cannot be held responsible for harm caused by such acts or while such acts are commissioned.

The second limb of the test asks whether the wrongful conduct was so closely connected to the acts an employee was authorised to do, that it can fairly and properly be seen as acting in the course of that employment (or quasi-employment).

Just because employment is proven does not mean that a close connection is automatically established. To prove close connection, the claimant should take into account what the wrongdoer’s role was, their expected tasks, whether they stepped outside the scope of their duties in order to commit the act (or omission) and whether their role merely allowed them the opportunity to do so.

What if an employee who caused injury leaves?

A claim can be made against an employer for the actions of a former employee as long as the harm caused by that former employee happened during his employment.

Terminating employment with a certain employer does not mean that vicarious liability cannot be found after the employee leaves the organisation.

We understand how confusing and distressing workplace injuries can be, especially when caused by someone else’s actions. Our experienced personal injury team can advise you on whether your employer may be vicariously liable and guide you through the claims process with care and clarity.

Get in touch today for expert advice and support with your workplace injury claim. Call 0330 822 3451 or request a callback.

This blog was co-authored by Rachel Cutmore, a law student currently gaining work experience at Hodge Jones & Allen as part of her journey toward a legal career.