As an employer, is the concept of vicarious liability on your radar? Think about everything your employees get up to, whether directly in the workplace or in their capacity as a representative of the business. Did you know that you could be held liable for their actions? Concerned?
What is vicarious liability?
Vicarious liability is a legal concept which means that a superior is responsible for the acts of its subordinate: in other words, an employer is liable for acts committed by its employees in the course of their employment.
For an act to be “in the course of employment”, it must either have been authorised by the employer, or be so closely linked to an authorised act (such as a method of doing something) that it is considered to be part of that act. Authorisation may be explicit or implied.
This means that the employer will not be liable if the unlawful act was not within the employee’s scope of employment. A case from over a hundred years ago provides a great example: a bus conductor employed to only collect tickets was not authorised to drive the bus, and when he did so (and injured a nearby pedestrian in the process), the employer could not be found liable for his actions.
In contrast, the liability of a security guard who uses excessive force to remove an intoxicated patron from a hotel may be shared by the employer, as this is within the scope of his role of a security guard, despite the improper means used to perform his duties.
What should I watch out for?
Some of the most common examples of vicarious liability are found in in discrimination and harassment cases. Remember that the act in question doesn’t necessarily need to occur directly at the workplace – it can be anything “in connection with” the individual’s employment, such as where the victim is discriminated against or harassed:
- while attending work-related social events
- while attending business events
- through the use of company property or equipment (such as posting on the company intranet or messaging using a company-issued phone)
What about the perpetrators?
Vicarious liability does not prevent the individual perpetrator from being liable for his or her own actions. However, unless the business can show that it took “all reasonable steps” to prevent the behaviour, then the liability may be jointly extended across both parties, employee and employer.
To determine what “all reasonable steps” are is a difficult question, and depends on the individual circumstances of both the issue and the workplace generally. Lack of knowledge of the event will not be sufficient. For example, in relation to harassment, example reasonable precautions may be to:
- implement a bullying and harassment policy and clearly communicate it to all workers
- provide regular training for new and existing employees
- encourage employees to report any harassing behaviour
- develop and maintain an effective complaint and resolution procedure which treats all complaints in a serious, respectful and efficient manner
- train supervisors and managers in recognising and responding to instances of harassment
For more information on vicarious liability and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.