Before I get to the missive, please join us at our next 1 day Difficult Conversations open course on 6 April in Central London or our 5 day accredited workplace mediation course on 11-13 and 19-20 May, again in Central London.
Now then, in 1995, I was introduced to the term ‘Vicarious Liability’ for the first time. I was taking the employee relations module whilst studying towards my CIPD qualification which I gained in 1997. I remember being intrigued by the term and its meaning then and have discussed its implications on a number occasions since my studies. There have been two judgements recently that raise serious issues. The corollary is that a relationship other than employment is in principle, capable of giving rise to vicarious liability provided certain conditions are met.
Briefly, Mrs Cox was a catering manager in Swansea Prison. She was injured when a prisoner dropped a bag of rice on her. She brought proceedings against the Ministry of Justice indicating that one of its executive agencies was vicariously liable. The prisoner was not an employee but had been doing work in the kitchen helping to prepare meals for inmates.
Secondly, Mr Mohamud pulled in to a petrol station in London, not to get fuel, but to print documents from his USB stick. The petrol station is owned by Morrisons. An altercation broke out between Mr Mohamud and the petrol station employee, a Mr Khan. The result was that Mr Khan ordered him off the premises accompanied by a torrent of racial abuse. For good measure, Mr Khan left his counter and proceeded to the forecourt where he punched Mr Mohamud in the face.
In the Cox case, the Court stated harm must be wrongfully done by a person who carries on activities as an integral part of the business or operation carried on by the Defendant for its benefit and, second, the risk of a wrongful act being committed must be caused by the Defendant assigning activities to the person in question.
In the second case the violence was a re-enforcement of Mr Kahn’s order to leave the premises which was sufficiently connected to the job assigned to him that the employer should be held responsible.
The Courts considered the ‘close connection test’ which seeks to answer two questions. Firstly, what field of activities was entrusted to the employee or what was nature of job, which is to be answered broadly. Secondly, whether there was sufficient connection between the field of activities carried out by employee for it to be just for the employer to be responsible.
This isn’t my usual type of missive. Why write about this?
The implications are wide ranging as the Supreme Court has now accepted that vicarious liability can arise where there is no contract of employment but where activities are undertaken that are integral to the business. Nowadays, there are many work places where workers may be part of the work force without having a contract of employment.
Worth consideration for discussion at your next team HR meeting?