What is Vicarious Liability
A definition of Vicarious liability in the workplace is where an employer is held liable for the wrongdoing of an employee, or someone whose role is akin to that of an employee, even where the employer has done no wrong itself.
However, to make this more clear it is when an employer could be held responsible for an employee’s actions.
For example; If an employee discriminates against someone else, by law their employer could also be held responsible.
There are three areas which need to be established to determine such vicarious liability and they are:
- The relationship between employer v employee
- The tortious act of negligence committed (i.e the wrongdoing)
- That the act was committed within the course of employment.
Whether the employee and employer are both held responsible depends on whether the discrimination is linked to the employee’s work. The law describes this relationship as ‘acting in the course of employment’. The discrimination could happen at work or outside the workplace, for example at a work party, or through social media that’s linked to work.
So for example:
Bill, a shop assistant, makes a negative comment to someone they work with about their race. Bill’s employer could also be held responsible for that discrimination.
An employer might not be held responsible if an employment tribunal decides they took all reasonable steps to try to prevent discrimination, harassment and victimisation by staff.
Other means of committing Vicarious Liability are
- Bullying and Har bullying and harassment
- Breach of trust or confidentiality
What an employer can do to prevent discrimination
Employers can implement various means of preventing the risk to their business of vicarious liability occurring and then themselves being held liable too.
The ways which they can do this are by:
- Having an up-to-date equality policy
- Providing regular anti-discrimination training to staff
- Making it clear how staff can complain if discrimination happens
- Regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships
By ensuring that the above is in place it can help by:
- Making sure your workplace treats employees fairly
- Making it less likely you’ll be held responsible for discrimination carried out by an employee
While it will be rare for the majority of employers to have to defend claims of vicarious liability, the potential financial and reputational risks that do exist means that employers should be reviewing their risk profile on a regular basis.
By having a water tight Staff Handbook or HR Policies and Procedures these can be the basis of reducing the risk.
Additionally, ensuring that your staff are adequately equipped to deal with such instances through thorough training and supportive measures during their time with your business or organisation can also lessen the chances of this happening.
Should you wish to discuss training, creating a staff handbook or policies for your business then please do get in touch.