In the first of two articles where we look at the scope of an employer liability for their staff and their actions, we consider the concept of vicarious liability, where the business can be sued for the acts or omissions of an employee.
There are circumstances, for example when a staff member is clearly acting on behalf of the business where the firm is obviously liable, in fact where it would be totally unfair to hold the employee responsible.
For example, where the employee is following instructions or training and unwittingly gives out the wrong information such as the classic “we don’t give refunds” which, in the vast majority of consumer cases, is a breach of the customer’s statutory rights.
Here we can clearly differentiate between the “fault” of the firm for not giving adequate training or allowing incorrect statements to be made on their behalf, from the “fault” of the person.
But what happens when an employee goes rogue?
Rightly or wrongly, vicarious liability cases have been perhaps understandably more frequent concerning “doormen” and “bouncers” at pubs and clubs, largely because of the “sufficiently close connection between the wrongful act (or omission) of the employee and his or her employment.”
So how does that equate with the “Morrison’s decision” where an employee, following a verbal exchange with customer at one of their petrol stations, followed him to his car and physically assaulted him?
Can the employer really be expected to be responsible for any and all of the acts of the employee? Not according to the original trial judge, but the Court of Appeal disagreed, overturning the original decision.
Many may suggest that the means justifies the ends, in a form a natural justice, in that the customer suffered physical injury while on Morrison’s premises, at the hands of one of their employees and the company is more likely to be able to pay the compensation.
Other may cynically suggest it relieves the burden on of the Criminal Injuries Compensation Authority with firm becoming a quasi-insurance policy.
But what about the wider business community? What about small businesses, tip toeing around employment law, can they now be expected to carry the can for all the sins of their employees? Are suggestions of ensuring employees work in pairs subjected to “stress testing” and is training a financially viable means of risk aversion?