← The hardest concepts in United Kingdom law
In one breath
An employer can be held liable for a tort committed by an employee, or by someone in a relationship like employment, even though the employer did nothing wrong. Liability turns on two questions: whether the relationship is of a kind that can ground liability, and whether the wrong is so closely connected with the job that holding the organisation responsible is fair.
The picture
The kite and its string
A kite flies where the wind takes it, but whoever holds the string put it in the air, enjoys the flight, and can reel it in. If the kite crashes through a neighbour’s window, the neighbour looks to the holder of the string, not just to the wind. If a stranger picks up the kite from the grass and flies it at will, the original owner is not answerable. The string is the connection, and it must be attached to the activity.
The law has two strings. First, the relationship: traditional employment, tested by control, integration and the economic reality of the arrangement (Ready Mixed Concrete), or a relationship akin to employment, where the wrongdoer’s activity is part of the defendant’s business, carried on for its benefit, and the defendant created the risk (Various Claimants v Catholic Child Welfare Society). Second, the connection: the wrong must be so closely connected with what the person was asked to do that it is fair and just to hold the organisation liable (Lister v Hesley Hall; Mohamud v WM Morrison Supermarkets).
Where the picture stops working
A string is tangible, whereas “close connection” is a judgement, and similar facts have been decided differently. The kite does not explain why liability is shifted at all. The usual reasons are that the organisation creates the risk, profits from the activity and is better placed to insure. Vicarious liability also does not replace the employer’s own liability for negligent hiring or supervision, which requires fault.
How it really works
- 1Identify the wrongdoer’s tort. Vicarious liability does not create a wrong; the claimant must first show that the individual committed a tort.
- 2Ask whether the relationship is one of employment or akin to it. For traditional employment, courts look at control, integration and the economic reality. Independent contractors generally do not qualify.
- 3For relationships akin to employment, ask whether the wrongdoer’s activity was part of the defendant’s business, done for its benefit, and whether the defendant created the risk of the wrong.
- 4Ask whether the wrongdoing was so closely connected with what the person was authorised or asked to do that it is fair and just to hold the defendant liable.
- 5If both stages are met, the defendant is liable alongside the wrongdoer, and the claimant may sue either or both.
Why people get it wrong
- Thinking an employer is liable for anything an employee does while at work. The wrong must be closely connected with what the employee was employed to do.
- Thinking that an employer escapes by showing the employee disobeyed instructions. A prohibition does not by itself sever the connection.
- Assuming that only formal employees count. Relationships akin to employment can qualify, whereas true independent contractors generally do not.
- Confusing vicarious liability with the employer’s own negligence in hiring or supervising. That is a separate claim based on fault.
A worked example
The facts are invented
Vale Couriers employs Jo as a van driver. On his round Jo carelessly knocks down a pedestrian. Vale is vicariously liable: the driving is what Jo was employed to do.
In a second scene Jo, against the rules and on his own time, drives the van twenty miles to his sister’s house and crashes carelessly on the way. The wrong is hardly connected to his job, and Vale is likely to escape. In a third, Jo becomes angry at a customer’s door during a delivery and strikes him. Jo’s role involved dealing with customers, and the attack was part of an unbroken episode with that dealing. A court following Mohamud may well hold Vale liable, though the question is one of judgement.
Try it
A delivery driver, in the middle of a round, makes a private detour twenty miles off route and injures a pedestrian by driving the employer’s van carelessly. Is the employer necessarily liable?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance, [1968] 2 QB 497
- Lister v Hesley Hall Ltd, [2001] UKHL 22, [2002] 1 AC 215
- Various Claimants v Catholic Child Welfare Society, [2012] UKSC 56, [2013] 2 AC 1
- Mohamud v WM Morrison Supermarkets plc, [2016] UKSC 11, [2016] AC 677
Where to go next
Courses
Dictionary
More hard concepts in United Kingdom law
- Duty of care and the incremental approach (Tort law)
- Causation: the but-for test and its exceptions (Tort law)
- Remoteness of damage (Tort law)
- The rule in Rylands v Fletcher (Tort law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. The United Kingdom has three legal systems: England and Wales, Scotland, and Northern Ireland. These pages mostly describe the law of England and Wales and say where Scots law differs when it clearly does; Northern Ireland law is often similar to English law but is not covered separately. Parliament is sovereign, but the devolved legislatures also make law within their powers. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources before relying on any rule.