Employers' liability & vicarious liability

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.