Vicarious liability – it can be a major bane for many employers. Sadly, many employers don’t even realise that this is something that can affect them.
So what is vicarious liability?
It is when an employer is held liable for the actions of an employee or in some cases, third parties like customers or clients during the duration of that employee’s employment. Vicarious liability can open up a huge range of problems for employers that can result in legal issues and more.
In this blog post, we’re exploring how vicarious liability can affect employers and what they can do to prevent being held vicariously liable for the actions of employees during the course of their employment.
Circumstances Under Which Vicarious Liability Can Occur?
Determining whether or not an employer should be liable for the actions of an employee is difficult. Before this can be determined, some key criteria must first be met.
The key aspect in any potential vicarious liability case is whether or not the employee was acting in a personal capacity while in their workplace under the control of the employer.
The Employee Goes Above Their Designated Authority And Conditions
One key factor examined is whether or not the employee’s actions occurred during the course of his/her employment. Under this condition, it will be assessed whether or not the employee acted outside of workplace protocol and his or her designated authority while engaging in the specific action.
If it is found that they did so outside of protocol and the designated authority given to them by their employer, then the employer won’t be held liable for his or her actions. The employee would be considered solely responsible.
An example of this could be a bus driver for a school who knows they are supposed to drive under the speed limit and not drive drunk. For example, an employee does drink and drive, speed, and cause a traffic accident. In this situation, the bus driver would be held solely responsible and the employer would not be held vicariously liable. It would have already been made clear to the bus driver what the drivers’ responsibilities are.
However, that being said, there are also some tricky legal clauses whereby an employer can still be held vicariously liable even if the employee is at fault.
An Employer May Be Liable For An Employee’s Criminal Actions
In some cases where an employee has engaged in criminal behaviour, the employer can also be held liable. The reason being is because the employer will potentially be considered by a court to have been ‘professionally negligent’ in hiring an employee and not doing enough due diligence to ensure they were hiring an employee of good character.
An example of vicarious liability in this instance could be a case whereby a tenant entrusts the keys of his/her unit to a porter. The porter has a criminal record. The porter laters breaks into the unit, steals jewellery and causes damage to the property. The employer would potentially be considered negligent for hiring a porter that is a criminal, and therefore failed in the presumed duty to protect the plaintiff’s property.
Proving Vicarious Liability Is Tricky And Incredibly Complex
There is a myriad of issues, legal clauses, and viewpoints a court can take when examining vicarious liability cases. There are many times when it seems completely unfair for an employer to be held liable for improper conduct by an employee. However, the employer can still be seen as vicariously liable.
What we can tell you for certain is that vicarious liability is not something you want to be involved in. The good news? It’s easily preventable.
How Can Employers Prevent Vicarious Liability?
The simplest way employers can prevent vicarious liability is by ensuring that their workplace policies and procedures are fully up to date and in writing. The easiest way to do this is with a Staff Handbook. A Staff Handbook ideally should cover areas like harassment and bullying, workplace safety and injuries, taking holiday leave, sick leave, designated working hours, and plenty more.
Think of a Staff Handbook as the Bible of working at your company. It is a vital legal document that could prevent vicarious liability from occurring and save you plenty of legal headaches down the line.