How to avoid your business being liable for the wrongful actions of staff

In a case heard recently at the Supreme Court, it was decided that the supermarket chain Morrisons was liable for a physical assault carried out by one of their employees on a customer. On the same day, the Supreme Court also found the Ministry of Justice (MOJ) was vicariously liable for an injury inflicted on an external contractor because of the negligence of a prisoner working in a prison kitchen.

Whilst these are clearly two very different sets of circumstances, both cases highlight far-reaching implications for employers’ liability for unlawful acts by their employees while at work. Secondly, they also highlight the need for businesses to ensure they have sufficient insurance cover, provide all essential staff training and have up to date internal policies in place which prohibit any unlawful actions by their employees.

What does vicarious liability mean?

Vicarious liability means an employer is held responsible for the act or failure at work of their employee or worker. The important question is whether there is a close connection between the employee’s duties and their wrongful act. If there is, the employer will then be vicariously liable.

A business can also be liable for the wrongful acts of non-employees working in its business if the courts decide imposing vicarious liability is just and reasonable.

In the two recent but very different Supreme Court cases, vicarious liability applied because:

The Morrisons case
An employee of Morrisons racially abused a customer, ordered the customer to leave the premises and then seriously assaulted him.

The Supreme Court decided Morrisons must compensate the customer for his injuries. It said the key factors in Morrisons’ liability for this employee’s actions were:

• The function given to the employee by the business; and
• The closeness of the connection between the employee’s role and his wrongful conduct.

Here, the employee acted in his assigned role to serve customers. The assault was therefore sufficiently closely connected with his role for Morrisons to be liable.

The MOJ case
By contrast, this case concerned liability for the negligence of a worker who was not an employee. A catering manager at a prison was injured due to the negligence of a prisoner working in the prison kitchen and sued the MOJ for compensation. The Supreme Court decided that the MOJ was also vicariously liable for the prisoner’s negligence because:

• The prison service chose the prisoners to work in the kitchen;
• The prisoners working in the kitchen were integrated into the prison’s operations; and
• The prisoners’ activities directly benefited the prison service.

As the prison service had put the worker where there was risk of him committing a negligent act, imposing liability on the MOJ was just and reasonable.

Both of these cases highlight the need for all businesses to ensure that they have measures in place to limit the risk of their vicarious liability.

Businesses should do this by:

• Undertaking a risk assessment for all workers in the business;
• Securing relevant insurance cover;
• Providing all necessary training (including health and safety training) to staff and workers and volunteers to reduce the risk of negligently caused injury; and
• Adopting a zero tolerance approach to aggression or actions putting colleagues or customers at risk.