Criminal Conduct in the Workplace
It has long been established that employers can be vicariously liable for unlawful acts committed by their employees in the course of their employment. In the leading authority ofLister and others v Hesley Hallthe House of Lords held that in determining vicarious liability in the employment context the key question is whether the employee’s torts (wrongful acts) are so closely connected to his or her employment that it would be just and fair to hold the employer vicariously liable. It would be reasonable to make an employer liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business being carried on. In two recent cases the Court of Appeal considered whether an employer was vicariously liable for an assault committed by an employee on a manager in the workplace.
Weddall v Barchester Healthcare Ltdconcerned an assault on the assistant manager of a nursing home. The manager telephoned an employee who was off duty and asked him to cover a night shift. The employee, who had been drinking, declined the offer of the shift, but thought that the assistant manager was being disrespectful towards him. He then cycled to the home and assaulted the manager.Wallbank v Wallbank Fox Designs Ltdconcerned an assault on a manager in a factory in which bed frames were manufactured. The manager reminded an employee that he had not been placing bed frames onto a conveyer belt, as he should have been doing as part of his duties on the production line. In response the employee threw the manager onto a table, fracturing a vertebra in his lower back. The victims of the assaults in both cases brought claims against their employers, alleging that they were liable for the assaults committed against them whilst at work. In both cases County Court judges dismissed the claims, holding that there was an insufficient connection between the assaults and work the perpetrators were employed to do. Both cases were appealed to the Court of Appeal.
The Court of Appeal concluded that the appeal inWeddallshould be dismissed. The drunken assault which took place approximately 20 minutes after the offer of the nightshift was an independent act, motivated by the employee’s dislike of his manager, and quite separate from the employee’s employment. The assault happened to take place at the employee’s place of work, but that was no sufficient to make it connected with the employment.
However, inWallbankthe Court of Appeal concluded that the assault, which took place as an instantaneous reaction to the manager’s instruction, and at the same time and place as the instruction was given, was sufficiently connected with the employment to make the employer vicariously liable. The Court of Appeal concluded that giving and reacting to instructions is a normal part of employment, and that the possibility of a violent reaction to an instruction, particularly in a factor employment, was a reasonably incidental risk created by the employment.
It is clear from the Court of Appeal’s judgment that it wished to keep the doctrine of “vicarious liability” within reasonable limits, and it is clear that not every assault committed in the workplace will give rise to vicarious liability. However, the doctrine is flexible and each case must be addressed on its own particular facts. This does create some uncertainty for employers, as they may not know whether vicarious liability will attach to them for a assault committed by one employee on another.
David Gray-Jones, Partner-Advocate