The employer doesn’t pay her staff to do their jobs wrongly, negligently or even recklessly. She recruits carefully, making sure they are the best fit for the required role, with the necessary skill set and “cultural values” and then expends time, effort and cost in induction and further training to ensure the individual can deliver what the business (and the customer) needs. And then it goes wrong. Sometimes catastrophically so, and even “criminally” wrong. The individual may be held personally (criminally) liable for their own breaches of health and safety regulations and for offences against the person, but case law has also developed to broaden the employer’s civil liability for those criminal actions on a strict basis. Without proof of negligence on the employer’s part the innocent injured party has a well-trodden route to compensation. This is the principle or doctrine of vicarious liability and has been given some helpful clarification by the Court of Appeal recently, especially in the context of when the employer may be fixed with liability for the criminal actions of her employees.
Picture the scene; an employee (let’s say he’s a chef) has assaulted a colleague (one of the waiters) during the course of a busy and pressurised service at a restaurant. The waiter has been stabbed (not fatally) and is seeking damages for personal injury and other losses against the employer. The employer is understandably aggrieved at the prospect of being found liable for the criminal actions of the chef, but what are the likely issues to be considered by the court and what findings might be reached on whether vicarious liability will attach?
Common law position – basic principles
- An employer is liable for the acts of an employee when acting within the scope of his authority.
- An employer is not exempt from liability in tort because his employee's act amounts to a crime provided it is an act that is sufficiently connected with the employment.
- The “sufficient connection” test (Lister v Hesley Hall Ltd 2001) - presuming “vicarious liability” can arise because of the nature of the relationship between wrongdoer and defendant (ie employee/employer). is the connection between the employment and the wrongful act or omission so close that it would be just and reasonable to impose liability?
Recent guidance from the Court of Appeal
Each case very much turns on its own facts. Assistance is taken from Canadian authorities to help explore the issues to be addressed when establishing the existence (or not) of the “sufficient connection” that a claimant would need to establish. Those principles are applied in a recent Court of Appeal authority, Mohamud v W M Morrison Plc which approved the following non-exclusive list of factors relevant to criminal acts of employees:
- The opportunity that the enterprise afforded the employee to abuse his or her power.
- The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee).
- The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; The extent of power conferred on the employee in relation to the victim.
- The vulnerability of potential victims to wrongful exercise of the employee’s power.
Applying this approach to our hypothetical example
The enterprise (the restaurant in our hypothetical example) has brought the assailant and the victim together as co-workers. The role of chef is often a leading one in terms of the way a restaurant is successfully run, and can often bring the head of the kitchen into conflict with those staff working front of house. The chef is also likely to hold a large element of power (and responsibility) which a mere waiter may well be vulnerable to in the way he goes about his day to day work.
Every case in this sensitive area will depend on its own facts and that can never be underplayed. By taking some of the principles now clearly laid down in Mohamud, it is possible to assess with a greater degree of certainty whether or not the employer in our case study (and more accurately the insurer) is likely to be found liable for the criminal actions of the “aggressive and unpredictable” chef. Equally (and in some sense more importantly) it should be possible to identify those claims against the employer to which, as in Mohamud, vicarious liability is not going to attach, however well deserving the innocent victim might be. The principles of Lord Young’s report, Common Sense, Common Safety would seem to be working through into some positive and well- constructed judicial reasoning that will help business and their insurers readily understand their exposure when these unpredictable events come to pass.