Vicarious Liability — when is an employer liable for an employee?

Vicarious liability is the doctrine that holds one party liable for the wrongful acts of another, even though the first party committed no wrong themselves. In practice this means employers paying for the torts their employees commit at work. It’s a cornerstone of UK tort law and a perennial exam favourite.

The two-stage test. After Cox v Ministry of Justice [2016] UKSC 10 and Mohamud v Wm Morrison Supermarkets [2016] UKSC 11, the modern test asks two questions:

1. Stage 1:Is the relationship between the wrongdoer and the defendant one capable of giving rise to vicarious liability? Classically employer- employee, but now broadened to cover “akin to employment” relationships (Cox: a prisoner working in a kitchen; Various Claimants v Catholic Child Welfare Society [2012] UKSC 56: members of a religious order).
2. Stage 2:Is there a sufficiently close connection between the relationship and the wrongful act that it is fair, just and reasonable to hold the defendant liable? This is the “close connection” test from Lister v Hesley Hall [2001] UKHL 22.

The close-connection test in action. Lord Steyn in Listerheld that a school warden’s sexual abuse of pupils was so closely connected with the duties he had been entrusted with (caring for the children) that it was fair to make the school vicariously liable. Compare Mohamud: a petrol-station attendant assaulted a customer; the Supreme Court held this fell within the close-connection test because his job included interacting with customers, even though assaulting them was not part of it.

The retreat in Various Claimants v Barclays Bank. Various Claimants v Barclays Bank [2020] UKSC 13 tightened Stage 1: an independent contractor, even one performing services integral to the business, is not enough. The doctor in that case was self-employed; Barclays could not be vicariously liable for his abuses. The Court explicitly distinguished “akin to employment” from independent contracting.

The retreat in WM Morrison Supermarkets v Various Claimants. WM Morrison Supermarkets v Various Claimants [2020] UKSC 12 narrowed Stage 2: an employee’s leak of payroll data, done on a personal vendetta, was not closely connected with his employment despite occurring on company premises with company equipment. Motive matters: pursuing a private grudge takes the act outside the scope.

Applying the test in problem questions. Run Stage 1 and Stage 2 separately. State each leg of the test, cite the leading case, and apply it to the facts. If you cannot link the wrongful act to the employment’s assigned duties, say so — Morrison-style facts now defeat liability even where they would have established it under the older, looser Mohamud reasoning.

Why it matters. Vicarious liability is the deepest pocket in tort. Employees rarely have the resources to satisfy a judgment; employers do. The doctrine spreads the cost of accidents onto businesses that can insure against them — the loss-spreading rationale endorsed in Cox.

For more cases, see our case library (filter by Tort) and our Caparo duty-of-care guide for the broader negligence framework.