Core principles of tort - Vicarious liability

Learning Outcomes

By the end of this article, you will be able to identify when vicarious liability arises in tort, distinguish between employees and independent contractors, apply the course of employment test, and explain the close connection test for employer liability. You will be equipped to apply these principles accurately to exam-style scenarios involving workplace torts.

SQE2 Syllabus

For SQE2, you are required to understand vicarious liability as it applies to the law of tort. Focus your revision on the following syllabus points:

• the circumstances under which an employer is vicariously liable for torts committed by employees
• the criteria for distinguishing employees from independent contractors for liability purposes
• the definition and application of "in the course of employment"
• recognising liability for intentional, negligent, prohibited, or criminal acts committed by employees
• understanding the limits of vicarious liability and the effect of the "close connection" test

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.

1. What three elements must be satisfied for an employer to be vicariously liable for a tort in tort law?
2. Explain how to distinguish between an employee and an independent contractor for vicarious liability.
3. How does the "course of employment" test apply when an employee commits a prohibited or criminal act?
4. What is the significance of the close connection test in cases of intentional wrongdoing by employees?

Introduction

Vicarious liability is a fundamental doctrine in tort which imposes liability on one person (usually an employer) for torts committed by someone else (usually an employee). This principle ensures claimants have recourse to a responsible party for compensation, particularly where employees act during their work. For SQE2, you must know the criteria for vicarious liability and be able to analyse exam scenarios accordingly.

Key Term: vicarious liability
The strict legal responsibility of one person (typically an employer) for torts committed by another (usually an employee) during the course of their employment.

Elements of Vicarious Liability

An employer will be vicariously liable for an employee’s tort only if all three elements are present:

1. The employee has committed a tort.
2. The wrongdoer is an employee (not an independent contractor).
3. The tort was committed in the course of employment.

1. Tort Committed

Liability cannot arise unless a tort—such as negligence, battery, or assault—has actually been committed by the alleged employee. Always check that all requirements of the fundamental tort are satisfied before considering vicarious liability.

2. Employee Status

Vicarious liability generally applies only where the wrongdoer is an employee. Distinguishing employees from independent contractors is an essential, exam-relevant skill.

Key Term: employee
An individual who works under a contract of service, under the direction and control of the employer, and forms part of the business.

Key Term: independent contractor
A person engaged under a contract for services who retains control over how the work is done and is not integrated into the employer’s business.

Key Term: relationship akin to employment
A working arrangement which, while not technically employment, so closely resembles employment that the principal may be vicariously liable in the same way as an employer (e.g., some agency workers, church office holders, or prisoners).

Common factors in distinguishing employees from independent contractors include:

• Degree of control the employer exercises
• Requirement for personal service (can the work be delegated?)
• Assimilation into the employer’s business
• Who bears financial risk and opportunity for profit?
• How payment is made (wage/salary vs. fee per job)
• Whether the person presents as part of the organisation

Key Term: course of employment
Acts authorised by the employer, or unauthorised or wrongful acts so closely related to the employee’s job role that it is fair to treat them as done in the course of employment.

3. Course of Employment

For vicarious liability to arise, the tort must be committed in the course of employment. This does not only mean tasks authorised by the employer, but may also include unauthorised, negligent, reckless, intentional, or even criminal acts if closely connected to the employment.

Employers are generally not liable if the employee is acting outside their employment, i.e., engaged on a "frolic of their own"—purely personal pursuits unconnected with the job.

The Close Connection Test

Modern law uses the close connection test for intentional wrongdoing. The key question is whether the employee's wrongful act was so closely connected to what they were employed to do that liability is fair and just.

Liability for Prohibited, Negligent, or Criminal Acts

An employer may be liable for:

• negligence during work tasks,
• prohibited ways of performing an authorised act,
• intentional criminal acts that are closely connected to the job.

The central issue is NOT whether the act was forbidden, but whether it nevertheless arose from or was linked to the employee’s duties.

Worked Example 1.1

A nightclub bouncer employed to control entry assaults a customer in response to abuse. Is the nightclub liable?

Answer:
Yes, if the assault was closely connected with the employee’s responsibilities—e.g., enforcing rules. Even though violence was prohibited and criminal, the employer may still be vicariously liable.

Worked Example 1.2

A delivery driver finishes a delivery, detours to visit a friend, and causes an accident on the way. Is the employer vicariously liable for the accident?

Answer:
Generally, no. If the driver was acting purely for personal reasons and had significantly departed from work duties, this would be outside the course of employment—a "frolic of their own".

Worked Example 1.3

A company hires a cleaning agency who send their own cleaners. A cleaner negligently injures a building visitor while working. Is the company liable?

Answer:
No. If the cleaner is an independent contractor (not an employee or in a relationship akin to employment), the hiring company will not be vicariously liable for the tort.

Exam Warning

In exams, check the status of the wrongdoer: vicarious liability almost never applies to independent contractors. Do not apply vicarious liability to agency/self-employed workers unless there is evidence of assimilation, control, or a relationship akin to employment, or the task is inherently dangerous.

Exam Warning — Forbidden Acts

If an employee’s act is expressly forbidden (or illegal), do not assume vicarious liability is excluded. Apply the close connection test: Would the employer normally expect to face such risk by employing the worker in that role?

Summary

Comparison: Employee vs Independent Contractor

Key Point Checklist

This article has covered the following key knowledge points:

• The three core elements for vicarious liability: existence of a tort, employee or analogous relationship, and course of employment.
• How to distinguish employees from independent contractors for vicarious liability.
• The "close connection" test applies even to prohibited or criminal acts by employees.
• Intentional or even criminal acts may attract employer liability if closely connected to the employee's role.
• Employers are rarely vicariously liable for independent contractors, except in specific statutory or inherently dangerous situations.

Key Terms and Concepts

• vicarious liability
• employee
• independent contractor
• relationship akin to employment
• course of employment