Employers' liability and vicarious liability

Vicarious liability extends responsibility for a tort beyond the immediate tortfeasor to those in authority over them. The doctrine has been one of the most actively developed areas of English tort law in the twenty-first century. The post-2001 expansion (Lister v Hesley Hall [2001] UKHL 22 — close-connection test for intentional torts; Various Claimants v Catholic Welfare Society [2012] UKSC 56 — relationships ''akin to employment''; Mohamud v WM Morrison Supermarkets [2016] UKSC 11 — application to violence at work) has been substantially qualified by the post-2020 retrenchment (WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12; Trustees of the Barry Congregation of Jehovah''s Witnesses v BXB [2023] UKSC 15).

Employers'' liability is the parallel doctrine of the employer''s direct (non-delegable) duty of care to employees. The leading authority is Wilsons & Clyde Coal Co Ltd v English [1938] AC 57: employers must provide competent staff, adequate plant and equipment, a safe place of work, and a safe system of work. The duty operates alongside vicarious liability and is statutorily supplemented by the Health and Safety at Work etc Act 1974 and the Employers'' Liability (Compulsory Insurance) Act 1969.

This week studies both doctrines and the modern post-2020 settlement on vicarious liability.

Vicarious liability emerged at common law in the seventeenth and eighteenth centuries as the doctrine of respondeat superior: the master answers for the servant''s torts in the course of employment. The original test was the Salmond test (Salmond on Torts, 1907): the servant''s tort is in the course of employment if it is a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master.

The Salmond test was applied throughout the twentieth century but produced unsatisfactory outcomes in cases of intentional torts (sexual abuse; assault) where the employer had clearly not authorised the conduct in any sense. Lister v Hesley Hall [2001] UKHL 22 replaced the Salmond test with the close-connection test: the tort is in the course of employment if there is a close connection between the employment and the tort. The new test produced expansion of vicarious liability into intentional-tort contexts.

Various Claimants v Catholic Welfare Society [2012] UKSC 56 expanded the doctrine further by recognising relationships ''akin to employment'' (here, religious orders'' relationships with members) as triggering vicarious liability. Cox v Ministry of Justice [2016] UKSC 10 applied the akin-to-employment test to prison work. Mohamud v WM Morrison Supermarkets [2016] UKSC 11 applied the close-connection test to a petrol-station attendant''s violent assault on a customer.

The post-2020 retrenchment has been substantial. WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 narrowed the close-connection test in employment-related data-breach contexts. Various Claimants v Barclays Bank plc [2020] UKSC 13 confirmed that genuine independent contractors are outside vicarious liability. Trustees of the Barry Congregation of Jehovah''s Witnesses v BXB [2023] UKSC 15 further refined the akin-to-employment test.

(1) The two-stage test for vicarious liability. (i) Is the relationship between the defendant and the tortfeasor capable of giving rise to vicarious liability? Either employment or akin to employment (Various Claimants v CWS; Cox v MoJ). Genuine independent contractors are excluded (Various Claimants v Barclays). (ii) Is the connection between the relationship and the tort sufficiently close to make it just to hold the defendant vicariously liable? The Lister close-connection test, refined in subsequent case-law.

Five graded practice questions in the panel below.

See the Further Reading panel for Stevens, Witzleb, the post-2020 academic commentary, and the Law Commission analysis.