As an employer, whose actions are you responsible for, anyway?
Life is complicated enough for employers. Any sensible business worries about its staff, its duty of care to staff and its compliance with a long list of employment regulation.
If that wasn’t enough, the behaviour of one member of staff to another also has to be considered following the principle of vicarious liability.
Put simply, vicarious liability means that you are legally responsible for the acts of your employees carried out in the course of their employment.
- If Employee A discriminates against Employee B whilst at work, the buck stops with you.
- If Employee A hits a customer (never a sensible move), the buck stops with you.
- Even if Employee A ends up in a drunken embrace with Employee B following a staff party, you are likely to be responsible.
So, what about a situation when you do not actually employ one party – are you responsible then?
The frustrating and perhaps predictable legal answer is “it depends”. However, let’s just examine the recently reported case of Various Claimants v Barclays Bank to get a feel for the issue.
Barclays historically obtained medical reports on their prospective staff from an external doctor contracted to them. Unfortunately, it is alleged that this particular doctor assaulted a number of these individuals when undertaking his medical examinations. The question has therefore been posed whether the bank is vicariously liable for the actions of the doctor.
Looking at the facts, the court has decided that Barclays could potentially be liable (assuming the wider allegations against the now deceased doctor are proved). Whilst not a direct employee, the doctor was nonetheless contracted to the bank, produced reports in the name of the bank and was under the bank’s control in terms of the work he undertook for the bank.
The employment relationship between the doctor and the bank was thus found to be one “akin to employment”. This, together with a finding that the alleged assaults had a sufficiently close connection to this “employment” – i.e. perpetrated when undertaking his duties for the bank – was sufficient to allow a claim under vicarious liability to be made against the bank.
This follows other notable cases of a similar flavour, such as the vicarious liability of nightclubs whose contract bouncers assault members of the public, even away from the venue.
So what conclusions can we draw from this?
Well, in a nutshell, all businesses should be aware of this extension to their potential liability. Protective measures should include:
- attempting to create a legal and practical framework under which the individual can genuinely be considered an independent contractor;
- putting in place clear codes of behaviour applicable to contractors as well as direct employees;
- dealing with complaints as seriously as you would if the individual were directly employed; and
- having insurance wide enough to cover the actions of such associated parties.