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  • Richard Moon

Who's To Blame? Vicarious liability and when employers are blamed for the things their staff do


Everything a company does is done by the people who work for it. If somebody suffers an injury because of what a company has done or has failed to do, you wouldn't put in a claim against the individual who caused the damage. It is natural to assume that because that person was working for the company, the company is to blame.


Usually that is right, but not always.


A recent legal case against Manchester City Football Club has underlined the point that it is not always easy to tell when someone is working for somebody else. The case was brought by victims of the serial child abuser Barry Bennell. Bennell worked as a football scout, working for a number of professional clubs. The nature of that work meant that sometimes he would be working directly for a football club, and other times he would be working independently on a self-employed basis, providing scouting information to clubs as and when they needed it. The case failed because the court ruled that at the time of the victims' abuse, Bennell was not working for Manchester City, although he had done in previous years.


The issue in legal terms is known as vicarious liability. The idea is that if someone causes someone else harm in the course of their employment, the employer (as well as the employee) can be held to be to blame. As well as the issue of fairness - that a company can only do things via the people working for it, so it isn't fair that a company could say, "It wasn't us, it was the guy who works for us" - there is also the practical matter of insurance. Generally, most people don't have enough spare cash to pay compensation claims made against them, and it is much easier for an employer to take out insurance to cover what their employees do.


The difficulty comes in cases where the question of whether a person is "at work" is a grey area.


For example, in the UK construction industry, almost everyone on a building site is strictly speaking self-employed. However, that doesn't mean everyone on site is their own boss; in fact most construction workers will work for a company or an individual employer in a way that is almost identical to how employees in other industries work for an employer. Their boss will pay them, deduct tax from their pay, tell them what to do and provide the building materials for them to use. Because of this level of control over their "self-employed" workers, almost always the "employer" on a construction site will be legally responsible for what their workers do.


But people are not at work all the time, and just because someone has a job it does not mean an employer is liable for everything that they do outside of work.


What about someone who is an employee, but where what they do isn't part of their normal work? Many such cases have been subject to appeals to the Court of Appeal and Supreme Court, such is the borderline nature of the issues. Examples have included:

None of these incidents were of someone doing what they were supposed to be doing when doing their job. Should the employer be to blame?


Over the years, courts have attempted to suggest various tests to determine whether it is fair to make an employer liable for the acts (and especially the criminal acts) of people working for them. They have looked at the issue of who was in control of what the worker was doing, but that is often insufficient to deal with cases where the worker has a lot of autonomy to decide what to do for themselves.


They have considered whether the criminal act of the worker was an unauthorised way of doing something they were in fact employed to do, for example a boarding school warden who used his position to commit sexual abuse.


More recently, decisions have tended to be concerned with the more general, common sense question of whether the wrongful act of the employee is closely enough connected with their work to make it fair to find the employer responsible.


That may sound like a simple question, but often it does not have a simple answer. It is an area of law which is still a work in progress, and it can be difficult to be definitive in saying whether or not an employer may be to blame.


#vicarious #liability #criminal #cica #employers

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