What does vicarious liability mean in practice?

It is important that practitioners who are involved in management of employees whether in private practice or NHS practice are aware of the risks of vicarious liability.  In private practice, the Practice (and partners) could be held vicariously liable for the actions of salaried GPs and other employees or workers.  As the cases below demonstrate courts will apply the principle broadly and it is not just reserved for traditional employment relationships.

The Supreme Court has recently decided upon two vicarious liability cases, each dealing with different aspects of the vicarious liability test.

Background on the law of vicarious liability

Vicarious liability means that an employer can be held responsible by the courts for the actions of its employees.  This happen where a connection exists between the contract of employment and the act of wrongdoing.   For example, in a discrimination claim the Practice will be named in the proceedings for alleged acts undertaken by employees or contractors of the Practice.  There are certain employment claims (discrimination and whistleblowing victimisation claims) where the Practice could plead the ‘reasonable steps’ defence, but this defence is not available for other claims such as unfair dismissal.

In more recent cases, the courts have decided to extend the law of vicarious liability to cover other types of working relationships (for example in the Catholic Welfare Society and others v Various Claimants [2012] UKSC 56, the Catholic Institute was liable for abuse carried out by teachers at a boy’s school, despite the fact that the teachers were employed by the school and not the Institute; there was a close connection between the Institute and the teachers to warrant this).  This demonstrates just how far reaching the principle of vicarious liability can extend.  When considering risks a Practice should look at not only its ‘traditional’ employees, but also other individuals it engages with to assess whether the Practice could be held responsible.
When determining whether the principle of vicarious liability can be applied there is a two stage test to be applied; both stages of the test must be satisfied.

Stage 1. Is there a relationship between the wrongdoer and the Practice which is capable of giving rise to vicarious liability?

In the case of Cox v Ministry of Justice [2016] UKSC 10 the Supreme Court assessed the first stage of the test and made a helpful determination.  This was a personal injury claim brought by a manager of a prison kitchen, who had suffered a back injury when a prisoner working in the kitchen had dropped a bag of rice onto her back.  The County Court found that the prisoner was negligent, but also found the employer to be liable.  The Ministry of Justice (‘MoJ’) argued that the work undertaken by the prisoner did not give rise to an employment relationship as working for the prison was mandatory and it was for the benefit of the prisoner for rehabilitation purposes.  The MoJ argued that it was would not be just to impose an employment relationship in these circumstances.

The Supreme Court disagreed with the MoJ and applying a recent case involving liability for the abuse by a priest on a resident in a children’s home (JGE v Trustees of Portsmouth Roman Catholic Diocesan Trust [2012] IRLR 846), it was found that vicarious liability can arise outside of the typical employment relationship where an individual undertakes work for the benefit of the business.  The fact that the prison was able to control the allocation of duties and the work undertaken was also an influential factor in the decision making.  Also, the Supreme Court found that the fact that the prisoner was compelled to undertake the work, strengthened the case for vicarious liability.

Does your practice utilise individuals who are not employees, but who benefit your business and over whom you have some element of control?

Stage 2. Is the employment sufficiently connected with the wrongful act/omission?

In the case of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, the Supreme Court assessed the second stage of the test in another personal injury claim.   The facts of this case arose from a physical assault of a customer by an employee of Morrisons at a petrol station.  Following a verbal altercation with the customer within the petrol station shop, the employee left his kiosk to chase the customer.  The employee warned the customer not to return his employer’s premises again and then proceeded to physically attack the customer on the forecourt.

In defending the personal injury claim, Morrisons sought to argue that they should not be found vicariously liable because his actions were outside the scope of his duties.  They argued that his duties did not include confrontations with customers and that he had metaphorically taken off his uniform when he stepped out from behind the kiosk.

The Supreme Court disagreed with the defence put and found that it was the employee’s role to attend to customers and respond to their inquiries.  The employee had been responding to the customer’s enquiry and the attack following on from this was part of that chain of events.  The court took into account the fact that the employee was warning the customer not to return to the petrol station.  It appeared to the Supreme Court that the employee was purporting to act about his employer’s business.  It was found that there was a sufficient connection between the employment relationship and the assault.  Morrisons were vicariously liable.

Summary:

Both cases and other case law in this area, demonstrate that the courts will adopt a broad approach to the question of vicarious liability, even in those cases where the employee’s behaviour is seemingly outside the scope of their duties (as demonstrated in the Morrisons case).

The Courts are able to treat other workers as ‘deemed’ or ‘virtual’ employees for the purposes of vicarious liability.   This means that contractors and other ‘non employees’ of the Practice, for example  locum practitioners, should also be made aware of their expected conduct if they are undertaking the business of the Practice.

As a private practitioner, you ought to ensure that your practice has robust policies in place dealing with equality and diversity and bullying and harassment.  Furthermore, it is important to ensure that your practice managers and your employees are trained on and aware of such policies.  In cases of discrimination/whistleblowing detriment, training and staff awareness of equality and diversity policies (and other relevant policies), is important when pleading a ‘reasonable steps’ defence.  Further to this, it is important that you take swift action in accordance with policy where complaints are raised to ensure that it is clear policies are taken seriously.