What does vicarious liability mean for an employer ?
In order to answer that let's look at the definition of vicarious liability in Ireland.
Under Irish employment law, employers are vicariously liable for the acts or ommissions of an employee, when they occur in the course of that person's employment.
These acts can comprise bullying and harassment, discriminatory behaviour, defamation and breach of copyright, to name but a few.
The Employment Equality Acts 1998 – 2011 places an initial liability on employers for actions by employees which are discriminatory, even if the employer does not know about it or does not consent to it. The onus of proof is on the employer to show that they took reasonable measures to prevent the discriminatory action. If the employer can prove that, then they will be able to avoid vicarious liability.
A recent UK vicarious liability case
In the case of Mr AM Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 the UK Supreme Court considered the position of the vicarious liability of employers.
The issue
Mr Mohamud was violently assaulted by a petrol pump attendant, employed by Morrisons. He claimed that the supermarket should be vicariously liable for the actions of its employee.
What happened
The claimant went to Morrisons petrol station in Birmingham. He asked if the garage could print off some images from a USB stick.
Mr Khan, who worked behind the counter responded with foul and abusive language. He continued to abuse Mr Mohamud and ordered him to leave.
He followed Mr Mohamud to his car, opened the passenger door and told him in a threatening manner never to come back. Matters escalated resulting in an unprovoked assault on Mr Mohamud, in spite of Mr Khan's supervisor telling him to stop.
At trial and appeal Morrisons were held to be not vicariously liable. The Supreme Court overturned this and held Morrisons vicariously liable for the actions of its employee.
The court used the “close connection “ test, which was introduced in the UK following a 2001 case.
It held that it was within the “ field of activities” assigned to Mr Khan.
The court was at pains to point out that each case must be examined on its own merits and circumstances.
What steps can employers take to reduce the risk of vicarious liability for the actions of their employees?
You must be able to show that you have taken all reasonable steps to stop the action from occurring.
You have to start with an up to date equality policy document, which is shared effectively with all staff. It is not enough to have a policy, it must be communicated to the staff in such a way that they act upon it. There is a clear need for staff training in the area of discrimination in the workplace.
What should I do next?
You should take a fresh look at what measures you have in place to prevent discrimination and other unlawful activities taking place at work. Are they up to date? If in doubt, please contact us and we will help you minimise the risk of being held vicariously liable for the wrongdoings of your employees.
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