Learning Outcomes
This article explains the principle of vicarious liability, focusing particularly on the modern 'close connection' test used to determine whether an employee's tortious act falls within the course of employment. For the SQE1 assessments, you will need to understand the elements required to establish vicarious liability and how the courts apply the close connection test, especially in cases involving intentional torts or acts outside express authorisation. This will enable you to identify and apply the relevant legal principles to SQE1-style single best answer MCQs concerning an employer's liability for the actions of their employees or those in similar relationships.
SQE1 Syllabus
For SQE1, you are required to understand the principles of vicarious liability, particularly the application of the 'close connection' test. This involves analysing the relationship between the tortfeasor and the defendant, and the connection between the tort committed and the nature of the employment or relationship. You will likely need to apply these principles to factual scenarios to determine liability.
As you work through this article, remember to pay particular attention in your revision to:
- The three essential elements required to establish vicarious liability.
- The distinction between an employee and an independent contractor (briefly).
- The 'close connection' test established in Lister v Hesley Hall Ltd and its application in subsequent cases like Mohamud v WM Morrison Supermarkets plc.
- How the test applies to intentional torts committed by employees, including assaults and fraud.
- The extension of vicarious liability to relationships 'akin to employment'.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- Which three elements must be present for an employer to be held vicariously liable for the actions of an employee?
- What is the name of the modern test used to determine if an employee’s tort was committed in the course of employment, particularly for intentional wrongdoing?
- In which landmark case was the 'close connection' test established in the context of intentional torts (specifically sexual abuse)?
- True or False: An employer can only be vicariously liable for the negligent acts of their employees, not intentional torts like assault.
Introduction
Vicarious liability imposes legal responsibility on one party (often an employer) for a tort committed by another (often an employee), even where the first party is not personally at fault. This principle is rooted in public policy, aiming to ensure that victims have recourse against a party who is likely to have the means to compensate (often backed by insurance) and who benefits from the activities that created the risk. For the SQE1 assessment, understanding when an employer will be held liable for the acts of its employees is essential, particularly focusing on whether the tort occurred within the 'course of employment'. The modern approach to this question hinges on the 'close connection' test.
Establishing Vicarious Liability: The Core Elements
For vicarious liability to arise, typically in an employment context, three core requirements must be met:
- A tort must have been committed: The person whose actions are in question must have committed a recognised tort (e.g., negligence, battery, defamation). Without an existing tort, there can be no vicarious liability.
- Relationship of employment or akin to employment: There must be a legal relationship of employer and employee, or one that is sufficiently similar ('akin') to employment, between the tortfeasor and the party alleged to be liable.
- The tort must have been committed in the course of employment (or the quasi-employment relationship): The wrongful act must be sufficiently connected to the work the employee (or person in a similar role) was engaged to do.
While the first two elements are foundational, the third element – 'course of employment' – often presents the most complex analysis, particularly concerning intentional wrongdoing or acts expressly prohibited by the employer. The traditional 'Salmond test' (focusing on authorised acts or unauthorised modes of doing authorised acts) has largely been supplemented by the more flexible 'close connection' test for difficult cases.
The Close Connection Test
The limits of the traditional Salmond test became apparent in cases involving intentional wrongdoing by employees, such as assaults or abuse, which could not easily be classified as merely an 'unauthorised mode' of performing employment duties. The House of Lords (now Supreme Court) addressed this in Lister v Hesley Hall Ltd [2001] UKHL 22.
Key Term: Vicarious liability The legal principle where one party can be held liable for the torts committed by another party due to a specific legal relationship between them, most commonly employer and employee.
Key Term: Close connection test The test used to determine if an employee's tort occurred in the course of employment, asking whether the tort was so closely connected with their employment duties that it is fair and just to hold the employer liable.
In Lister, the warden of a residential school for children with behavioural difficulties sexually abused pupils in his care. The House of Lords held the employer vicariously liable. Lord Steyn established the 'close connection' test: was the employee's tort so closely connected with his employment that it would be fair and just to hold the employer liable? The Court found that the warden's duties involved close contact with the children, creating the opportunity for the abuse. The tort was therefore closely connected to the nature of his employment.
This test shifts the focus from the authorisation of the act to the connection between the wrongful act and the nature of the job entrusted to the employee by the employer. It considers whether the employment created or significantly enhanced the risk of the tort occurring.
Worked Example 1.1
A delivery driver, employed by Courier Co Ltd, gets into an argument with a customer, Mr Jones, over a parking space outside Mr Jones's house while delivering a parcel. The argument escalates, and the driver punches Mr Jones, causing injury. Is Courier Co Ltd likely to be vicariously liable for the assault?
Answer: Yes, likely. Applying the close connection test following Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, the driver's interaction with Mr Jones arose directly from his employment duty (delivering parcels). Although the assault was an unauthorised and wrongful act, it occurred during an interaction that was part of his job. The assault followed seamlessly from the argument about performing his duties. Therefore, the tort is likely sufficiently closely connected to his employment for Courier Co Ltd to be held vicariously liable.
Intentional Torts and Prohibited Acts
The close connection test is particularly relevant for intentional torts (like assault, battery, fraud, theft) committed by employees. An employer will not be liable if the employee's act is considered independent wrongdoing unrelated to their employment – often described as the employee being on a 'frolic of their own'.
Key Term: Course of employment The scope of activities performed by an employee that are considered part of their job, or sufficiently connected to it, for the purpose of establishing vicarious liability. Acts falling outside this scope (a 'frolic of their own') generally do not attract employer liability.
However, even if an act is expressly prohibited by the employer, it might still be within the course of employment if it is closely connected to the employee's duties. For example, if a driver is told not to exceed speed limits but does so negligently while making deliveries (an authorised task performed in an unauthorised way), the employer is likely liable. If the same driver takes the company van for a personal trip entirely unrelated to work, this would likely be a 'frolic of their own', and the employer would not be liable for torts committed during that trip.
Worked Example 1.2
Sarah works as a cashier at a supermarket. Company policy strictly forbids employees from using customer loyalty card details for personal gain. Sarah uses a customer's details to fraudulently obtain loyalty points for herself. Is the supermarket vicariously liable for Sarah's fraud?
Answer: Possibly. The act is clearly prohibited and fraudulent. However, applying the close connection test, Sarah's employment gave her access to the customer loyalty system and the opportunity to commit the fraud arose directly from her duties handling customer transactions. A court would consider if the connection between her role and the fraud was sufficiently close to make it fair and just to hold the employer liable, similar to cases involving misuse of position or information obtained through employment.
Extension to Relationships 'Akin to Employment'
The principle of vicarious liability has been extended beyond the traditional employer-employee relationship to cover situations where the relationship between the tortfeasor and the defendant is 'akin to employment'. This was established in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the 'Christian Brothers' case), involving abuse by members of a religious order teaching at a school managed by the order.
The Supreme Court identified key factors indicating a relationship akin to employment:
- The relationship involves activity undertaken on behalf of the defendant organisation.
- The activity is fundamental to the defendant's operations.
- The defendant created or enhanced the risk of the tort occurring by assigning the activity to the tortfeasor.
- The tortfeasor is, to some degree, under the control of the defendant.
- The defendant has the means (often through insurance) to compensate the victim.
Key Term: Relationship akin to employment A legal relationship possessing features similar to traditional employment (such as inclusion in the organisation, control, and risk creation), allowing vicarious liability to be imposed even without a formal employment contract.
Worked Example 1.3
A volunteer scout leader, vetted and trained by the local Scout Association, negligently fails to supervise scouts during an activity, leading to one scout injuring another. Is the Scout Association potentially vicariously liable?
Answer: Potentially yes. The relationship between the volunteer leader and the Scout Association might be considered 'akin to employment'. The leader carries out activities fundamental to the Association's purpose (running scout activities), is under its control regarding training and procedures, and the Association created the risk by assigning supervisory duties. If these factors are met, the close connection test would then be applied to the negligent act itself.
Exam Warning
Remember that the 'akin to employment' doctrine significantly broadens the scope of vicarious liability beyond formal employment contracts. For SQE1, be prepared to analyse relationships involving volunteers, caregivers, or members of unincorporated associations using the factors outlined by the Supreme Court. Do not assume vicarious liability only applies to traditionally employed staff.
Summary
Vicarious liability allows a claimant to sue an employer (or similar body) for a tort committed by an employee (or someone in a relationship akin to employment). Key requirements are: (1) a tort committed by the employee/individual; (2) a relationship of employment or akin to employment; and (3) the tort occurring within the course of that employment/relationship. The modern test for 'course of employment', especially for intentional torts, is the 'close connection' test from Lister, asking if the tort is so closely connected to the employment duties that imposing liability on the employer is fair and just.
Key Point Checklist
This article has covered the following key knowledge points:
- Vicarious liability imposes liability on one party for the tort of another based on their relationship.
- Three elements are needed: a tort, an employment (or akin) relationship, and the tort occurring in the course of employment.
- The traditional 'Salmond test' is often insufficient for intentional torts.
- The modern 'close connection' test (Lister) assesses the link between the tort and employment duties to determine if liability is fair and just.
- Mohamud v WM Morrison affirmed the application of the close connection test to acts of violence arising from customer interactions.
- Employers are generally not liable for acts constituting an employee's 'frolic of their own'.
- Express prohibition of an act does not automatically take it outside the course of employment if it's closely connected to authorised duties.
- Vicarious liability extends to relationships 'akin to employment' based on factors like control, inclusion, and risk creation (Catholic Child Welfare Society).
Key Terms and Concepts
- Vicarious liability
- Close connection test
- Course of employment
- Relationship akin to employment
