Essay question

How has the law developed in holding employers liable for the criminal acts of their employees? Do you agree with the direction of the courts in this respect?

Answer:

To hold an employer vicariously liable, typically the tortfeasor must be an employee and have committed the tort in the course of their employer’s business. As evidenced in Joel v Morison ‘… the servant must be engaged on his master’s business and not off on a frolic of his own.’

Where the employee’s act was outside of their duties and employment, there has been no liability for the employer (Heasmans v Clarity Cleaning Ltd). However, when the employee’s action was taken in the course of their employment, the employer has been held jointly culpable.

In relation to criminal acts, the test of establishing whether the employee’s act was a wrongful or unauthorised method of performing an authorised act is not always of use when assessing intentional torts. Rather, it is more apt to consider the closeness of the connection between the wrong committed by the employee and the nature of their employment, and to determine whether it is just and reasonable in those circumstances to hold the employer vicariously liable (Bernard v The Attorney General of Jamaica [2004]). Therefore, Daniels v Whetstone Entertainments and Allender and the major cases of Lister v Hesley Hall and Maga are of significance and must be included in a discussion. They established the rules regarding an employer’s liability and the required supervision of employees to ensure sufficient precautions exist to avoid the (criminal) acts. Similarly in Mohamud v WM Morrison Supermarkets Plc [2014], the brutal and unprovoked attack committed by an employee of Morrisons supermarket created the liability of the employer because this was an abuse of the job the employee was instructed to perform. It was connected with the job as the employee did have dealings with customers.

The decision as to whether the widening of the liability of an employer is fair and justified is a matter of opinion. However, it provides a greater opportunity for a claimant to seek redress for any damage or loss suffered, and it places greater responsibility (probably a correct approach) on an employer to take a proactive role in the actions of employees and to ensure cannot deny their responsibilities.