FLK1 · Tort

Employers' liability & vicarious liability

SQE1 revision notes — the key rules, leading cases and common traps for this topic, in plain English and current to 2026.

TOR.05 — Employers' Liability & Vicarious Liability

Two distinct routes to make an employer pay for harm. Keep them separate.

Vicarious liability (VL) — liability for ANOTHER's tort

No-fault liability. The employer is liable for a tort committed by another. Two stages, both required:

Stage 1 — relationship. Either employment, or a relationship "akin to employment" (Various Claimants v Catholic Child Welfare Society (2012); Cox v Ministry of Justice (2016) — prisoner working in kitchen). The key is whether the work is integrated into the defendant's business/activity, not a contract label.

True independent contractors generally fall outside VL (Barclays Bank v Various Claimants (2020) — self-employed doctor, no VL; the "akin to employment" gateway is not a catch-all).

Stage 2 — close connection. The tort must be so closely connected with what the employee was authorised to do that it is fair to impose liability (Lister v Hesley Hall (2001); restated in Mohamud v WM Morrison (2016) and tightened in WM Morrison v Various Claimants (2020) — leaking payroll data on a personal vendetta = "on a frolic of his own", NO VL). A personal grudge severs the connection.

A wrongful/criminal act can still ground VL if connected to the job; mere opportunity from employment is NOT enough.

Employers' liability (EL) — the employer's OWN breach

A personal, non-delegable duty in negligence to take reasonable care for employee safety. Classic Wilsons & Clyde Coal v English (1938) heads: competent staff, safe equipment, safe place of work, safe system of work. Duty is personal — delegating the task does not delegate the liability.

Breach of statutory duty: since s.69 Enterprise and Regulatory Reform Act 2013, breach of health-and-safety regulations is NO LONGER actionable per se by employees — claim must be framed in common-law negligence.

Traps to avoid

Don't confuse the two routes: VL = employer pays for the employee's tort; EL = employer's own breach of duty.
VL needs an underlying tort by the tortfeasor — no tort, no VL.
"Close connection," not just "during working hours/at work."
Barclays (2020) reined in "akin to employment" — genuine independent contractors are out.
s.69 ERRA 2013: no automatic civil liability for regulatory breach.

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A man is a front-seat passenger in a car driven by a friend. The friend drives negligently and collides with another vehicle. The man was not wearing his seatbelt. Medical evidence establishes that had he worn the seatbelt his injuries would have been substantially less severe, though he would still have suffered some injury from the impact. The man sues his friend in negligence. Liability for the collision is admitted. The defendant argues that the man's damages should be reduced because of his failure to wear a seatbelt.

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