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Sometimes a third party is held liable for the actions of the defendant. This will depend upon the relationship between the defendant and the third party. Vicarious liability is most commonly found between employer and employee for torts committed whilst the defendant was in the course of employment.
Vicarious liability will not occur in relationships that rely on a contract for services, i.e. someone employed as an independent contractor. The relationship must rely on a contract of service, i.e. someone who is an employee.
The modern approach to ascertaining whether someone is an employee or independent contractor is the Economic Reality Test, as set out in Ready Mixed Concrete v Ministers of Pensions (1968) (HC), which takes into consideration several factors to establish the overall nature of the relationship between the two parties.
In that case a lorry driver who was responsible for hiring, maintaining and insuring his lorry was an independent contractor despite the fact that the company stipulated what colour the lorry had to be and what uniform he had to wear.
The test was further developed in Warner Holidays v Secretary of State for Social Services (1983) (HC). Three musicians were found to be employees of a holiday resort as they were employed for four months for a set fee. McNeil J set out a list of factors that the court should consider; level of control, provision of tools and equipment, salary, taxes, sick pay, bearing the risk of profit and loss, residual control, control over work hours, ability to do other work, how the parties describe their relationship and mutuality of obligations. Not one of these will be conclusive but they can all be considered.
In Argent v Minister for Social Security (1968) (HC) an actor who worked part-time teaching at a school, who was allowed to teach his own content and did not have to follow the syllabus with only occasional check-ins from the Head of Department was not an employee. There was not enough control exercised over the teacher by the school.
Where there is a mutual obligation between the two parties – one is expected to turn up at a certain time and the other must guarantee them work – there will generally be a relationship of employee and employer.
In O’Kelly v Trusthouse Forte (1983) (CoA) waiters (who were on a long list from which Grosvenor House Hotel chose workers on a weekly basis) were not obliged to turn up to work and the hotel was not obliged to guarantee them any work. They were independent contractors.
How the parties describe their relationship can be an indication, however it is not decisive. In Massey v Crown Life Insurance (1977) (CoA) the fact that Massey chose to call himself self-employed rather than an employee for tax purposes did not mean that he was not an employee.
In Airfix Footwear v Cope (1978) (Employment Tribunal) Cope worked from home making heels for shoes. The company provided her with all of the equipment and materials and she followed instructions set down by the company. She was found to be an employee.
Sometimes, in order to arrive at the fairest solution, the courts will find that, although not technically an employee, the defendant’s relationship with the third party is ‘akin to employment’.
In a similar case, Various Claimants v Institute of the Brothers of Christian Schools (2012) (SC) (the Christian Brothers case) Lord Phillips set out five factors (‘incidents of the relationship between employer and employee’) which make it fair, just and reasonable to impose vicarious liability in this way.
He stated that ‘Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is “akin to that between an employer and an employee”’.
There has been a flurry of recent cases on the meaning of ‘akin to employment’ which show how these five factors should be applied, and the expansion and more recent constriction of the court’s interpretations of ‘akin to employment’.
In Cox v Ministry of Justice [2016] UKSC 10, Lord Reed clarified that the five factors which make it fair, just and reasonable to impose vicarious liability on a defendant are not equally significant, and gave guidance on how the Christian Brothers case should be applied. The individual for whose conduct the defendant may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort. A wide range of circumstances can satisfy those requirements, and defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the tortfeasor.
In this case a catering manager in a prison was injured when a prisoner dropped a sack of rice onto her while carrying supplies to the kitchen The issue was whether the relationship between the prisoner and the prison service was akin to employment, and the Supreme Court found that it was. Prisoners working in kitchens are an integral part of the operation of the prison, selected with care, and payment of a wage is not essential for vicarious liability to be imposed.
In Armes v Nottinghamshire CC [2017] UKSC 60, it was held that local authorities could be vicariously liable for torts committed by foster carers against children who were in the local authority’s care and control.
In Barclays Bank Plc v Various Claimants [2020] UKSC 13, the Supreme Court appears to have pulled back from the expansion of the scope of vicarious liability. The claimants were all sexually abused by a self-employed doctor to whom the bank had sent them for a pre-employment medical examination. The Supreme Court unanimously held that the Bank was not vicariously liable for the doctor’s wrongdoing. He had never been anything close to an employee of Barclays, he was a true independent contractor. Lady Hale clarified that, when a person is clearly carrying on their own independent business, it is not necessary to consider the five factors.
On the same day, the Supreme Court decided Morrison Supermarkets v Various Claimants [2020] UKSC 12, where again on the facts vicarious liability did not apply. A disgruntled auditor uploaded the personal data of 98,998 employees to a public file sharing site and sent copies anonymously to the media. 9,263 of the victims of the data breach brought a group action under the Data Protection Act 1998, breach of confidence and misuse of private information. The Supreme Court found that the mere fact that the auditor’s employment gave him the opportunity to commit the wrongful act was not sufficient to warrant the imposition of vicarious liability. The auditor had been pursuing a personal vendetta, and it was hence abundantly clear that he was not engaged in furthering his employer’s business while doing so.
This more restrictive approach was applied by the High Court in TVZ and others v Manchester City FC [2022] EWHC 7 (QB). Thus the Supreme Court has been clear as to the importance of maintaining the distinction between employees and independent contractors and has cautioned against rushing to apply the ‘akin to employment’ approach. However the principles had become a little unclear, and the Supreme Court tried again to state them clearly in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15, where the Church was not held vicariously liable for rape of one of its members committed by an elder. Lord Burrows gave a detailed and helpful analysis of the relevant law. Applying it, although there was a relationship akin to employment, the close connection test was not satisfied; the rape had not occurred while the wrongdoer was carrying out any activities for the Church, and there was no convincing reason why the Church should bear the cost or risk of the rape. The more restrictive approach is still in place.
If one employer has outsourced an employee to another party then who will be vicariously liable for the employee’s negligence? It will be whichever has more control over the employee at the time and in general, this will still be the original employer unless there is a real transfer of employment (Mersey Docks and Harbour Board v Coggins and Griffiths (1947) (HoL)).
The claimant’s trade was hiring out cranes and crane drivers. A stevedore rented a crane and driver and was in control of what work the crane driver did but did not tell him how to do it. The crane driver was trained and paid by the claimant. The court found that the original employer remained vicariously liable for the negligence of the crane driver.
It can be possible to hold both employers jointly liable but only if they have equal control over the employee (Viasystems v Thermal Transfer (2005) (CoA)). The burden of proof is on the original employer to prove that they are not vicariously liable.
For an employer to be liable the employee must have committed the negligent act during the course of their employment. To define ‘in the course of employment’ the court will look to see if there was a ‘close connection’ between the defendant’s act and their employment. This test was set out in Lister v Hesley Hall (2001) (HoL) a case that involved the sexual abuse of students at a boarding school.
The ‘close connection’ test was confirmed in Mohamud v WM Morrison Supermarkets (2016) (SC). Mohamud had asked if a Morrison’s petrol station employee could print off some documents for him. The employee had refused using racist and threatening language. When Mohamud returned to his car the employee followed him and physically assaulted him. The Court of Appeal found an insufficiently close connection between the action and the employment but this was overturned by the Supreme Court who held Morrisons to be liable because this was not a personal altercation but one that had happened in the sphere of the employee’s job of supervising the petrol station. Even though the act of the employee was totally unpredictable and unsanctioned unlike in Mattis v Pollack (2003) (CoA) where the employer encouraged the employee to act aggressively.
Prior to this the courts has used the Salmond Test. An act would be defined as in the course of employment if it was;
This had led to, for example, victims of abuse not being able to hold their abuser’s employer vicariously liable because their actions did not fall into any of these categories. The House of Lords in Lister v Hesley Hall (2001) (HoL) overruled this test and ushered in the much less restrictive, but hard to define, test of ‘close connection’.
The difference between the two approaches can be seen by comparing the cases below, both concerning club doormen.
| In Daniels v Whetstone (1962) (CoA) a dance hall doorman assaulted the claimant twice in one night. Once inside the club and once, later, outside the club. The employer was held liable for the first assault but not the second which was seen as an act of revenge outside the course of employment. | In Mattis v Pollack (2003) (CoA) a club bouncer (Cranston) threatened the claimant when he tried to break up a fight between Cranston and another customer of the club. Cranston ran home and returned to the club with a knife and proceeded to stab Mattis who was left paraplegic. The employer, Pollack, was found vicariously liable for the bouncer’s actions, even though there was an element of personal revenge involved, because there was a ‘close connection’ between Cranston’s employment and the subsequent stabbing. The court also took into consideration that Pollack had specifically told Cranston to behave aggressively, thereby helping to create the risk of him harming a guest. |
Below are some examples of when the courts have and have not found liability. Bear in mind that many of these cases were decided using the older, Salmond Test.
In Limpus v London General Omnibus (1862) (Court of Exchequer) the driver of a horse-drawn bus tried to obstruct another bus. This was seen as an unauthorised way of fulfilling his work.
In Bayley v Manchester, Sheffield and Lincolnshire Railway (1873) a train conductor who had been told to make sure everyone was on the correct train injured a passenger when dragging him from the incorrect train. He was performing his duties but in an unusual way.
In Century Insurance v NI Road Transport (1942) (HoL) a lorry driver caused an explosion at a petrol station by smoking whilst filling his tank. Getting petrol was seen as incidental to his work as a lorry driver, therefore the employer was liable.
In general, the employee must have been acting outside the scope of his employment, or on a ‘frolic of his own’ (Joel v Morrison (1834) (Exchequer of Pleas)). The driver of a horse and cart was on a detour to visit a friend when he injured the claimant. His employer was not held liable as the employee had been on a frolic of his own.
In Beard v London General Omnibus Co (1900) a bus conductor who tried to drive the bus was not acting in the course of his employment.
The courts are unwilling to give employers a wide mandate for avoiding liability. Therefore if the employee carries out the correct work but in the wrong way the employer will still be liable. Only if the employee goes beyond the scope of their job in a way expressly prohibited by the employer will there be no vicarious liability.
| In Twine v Bean Express (1946) (CoA) a driver picked up a passenger, something that he was forbidden to do, and injured them by driving negligently. The employer was not liable because he had done something forbidden by the employer. | In Rose v Plenty (1976) (CoA) a milkman allowed a young boy, who was injured by the milk cart, to help him on his rounds even though this was prohibited. The court found that this was the milkman performing his work but in an unauthorised way, therefore the employer was liable. |
In general, time spent travelling to and from work is not in the course of employment. The exception would be if the travel was part of the job rather than just commuting (Smith v Stages (1989) (HoL)). The defendant’s employee had been sent to do some work in another part of the country and paid for travel expenses. On his way home he caused an accident injuring the claimant. His employer was found vicariously liable because he was not commuting but travelling for work at the request of the employer. The court stated that an employer will be liable if the employee was at the time of travel going about the employer’s business. This includes travelling on the employer’s time or travelling between offices. Receipts for travel are an indication that the voyage was made in the course of employment and not commuting.
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