Chapter 20 Answers to End-of-chapter questions

1. In what circumstances will an employer be liable for the actions of an employee? How far, if at all, should this extend to cover things that the employee has been expressly forbidden by the employer to do?

The question is asking you to consider the situations in which an employer will be vicariously liable for the actions of their employee. An employer will not be vicariously liable unless the following conditions are met:

  1. There must be an employer-employee relationship;
  2. The employee must have committed a tort; and
  3. The tort must be committed while the employee was acting in the course of employment.

You should consider each of these conditions in turn, and give an outline of the relevant rules supporting your points by reference to relevant case law.
The second part of this question requires you to consider the justifications for vicarious liability. Beginning with Lister v Hesley Hall Ltd [2002], it now seems an employer can do very little to avoid responsibility for the wrongdoings of their employee. See, for example, WM Morrison Supermarkets plc v Various Claimants [2020] and Mohamud v WM Morrison Supermarkets plc [2016].  
You should consider both sides of the argument here. It would seriously undermine the operation of vicarious liability if an employer was able to avoid liability by simply forbidding their employees from committing torts (something most employers would presumably be willing to do). If this were the case, situations in which an employer would be vicariously liable would be very rare. On the other hand, vicarious liability goes against the principle that wrongdoers should pay – the extent to which you think this is fair (and to whom) will depend on how far you accept the justification for the principle. Have another look at the pause for reflection box in section 20.1 to see what we think.

2. How, if at all, can the imposition of vicarious liability on a blameless employer be justified?

The principle of vicarious liability is at odds with the general approach of the common law and the principle of corrective justice whereby liability for any wrongdoing is imposed on, and only on, the wrongdoer(s). Over the years a number of policy objectives or justifications have been offered for the imposition of vicarious liability – see for example Lord Phillips in Various Claimants v Catholic Child Welfare Society and others [2012] at [34-35].

  1. The employer is likely to be in a position to compensate the claimant. They not only have, to use Glanville Williams’ description, ‘a purse worth opening’ or ‘deeper pockets’ than the employee (Williams 1956, p 232), but can also be expected to insure against such liability. The presence of liability insurance, in turn, means that vicarious liability acts as ‘a loss-distribution device’ whereby the financial loss arising from the wrongdoing can be spread more widely across the community through insurance premiums and/or higher prices.
  2. The tort will have been committed as a result of activity untaken by the employee on behalf of the employer or as part of the business of the employer – the so-called ‘enterprise liability’ or ‘delegation of task’ arguments (John Bell, ‘The Basis of Vicarious Liability’ (2013) 72(1) CLJ 17, 18.) These suggest that as the employer derives an economic benefit from their employees’ work, they should bear any related burdens: ‘a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise’ (John Fleming The Law of Torts (9th edn, LBC Information Services, 1998), p 410.)
  3. The employer by employing the employee has taken the risk of harm occurring and so, as they either gain a benefit from that risk or because of their role in creating it, they should bear responsibility should the risk materialize. (Lord Phillips in Various Claimants combined the second and third justifications to suggest that ‘[v]icarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse’ (at [86]) (see further Bell 2013)).

In order to answer this question fully you will be expected to offer your own view on whether – and when – the imposition of vicarious liability can be justified. For our view see the pause for reflection box in section 20.1.

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