Most workplace health and safety officers are confident in their core obligations, conducting risk assessments, ensuring PPE compliance and safe systems of work, and facilitating incident reporting channels, among others.
One aspect of the job which receives far less attention than it needs, however, is a form of legal exposure that, to many, sits just outside the conventional framework of health and safety management.
Vicarious liability, whereby an employer can be held legally responsible for the wrongful acts of an employee or employees, has become a bit of a hot topic in recent years. Recent cases and rulings should prompt any health and safety officer to take a closer look at this liability, while ensuring that they fully grasp its meaning and potential implications, should something go awry.
The reach of vicarious liability
Employer vicarious liability is a legal principle that suggests employers are held responsible for the wrongful act(s) of their employees, provided such acts occur during the course of their employment. Clarifying the scope of vicarious liability involves assessing two legal points:
- The relationship test – This requires a genuine, authentic relationship between the employer and perpetrator, making it appropriate for the organisation to shoulder responsibility for the latter’s actions.
- The close connection test – This requires the wrongful act to be sufficiently linked to what the employee is authorised and expected to do, to make it fair to impose liability on the employer.
Even if an employer is not personally at fault, they can still be held legally responsible for the actions of others. What’s more, while engaging a professional as a contractor might seem to absolve an employer of any responsibility, some risks do remain. Liability can extend to breaches of confidentiality, copyright, or trust, as well as physical harm, and the affected party or parties can pursue a claim directly against the employing organisation for any losses suffered. For those wanting to verify their current liability coverage, personal injury specialists George Ide LLP offer a useful starting point for understanding the audit process and highlighting how these tests are being applied in current case law.
When are employers liable for wrongful employee actions?
Businesses are most at risk when an employee’s actions are closely connected to their job role. Such examples of where liability is questioned include:
- Customer-facing incidents: Mishandling complaints, wrongful refusals, a generally rude attitude, or deliberately incorrect advice.
- Workplace accidents: Caused by unsafe systems or improper usage of equipment.
- Data mishandling: Sending personal information to the wrong person, failing to uphold proper data privacy etiquette, or granting unauthorised access to proprietary systems.
- Staff harassment / discrimination: Whether against other colleagues or customers.
Even if an employee knowingly acted against the employer’s specific protocols or instructions, the latter may still be liable if the wrongful act was connected to their duties. While it’s easy to say, “we trained them not to do that,” this may be sufficient if you can demonstrate that you took reasonable steps, but it doesn’t remove any incumbent business liability.
One such case, the Mohamud v WM Morrison Supermarkets case, established that employers can be held vicariously liable even if an employee commits a wrongful and quite serious act. Conversely, Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7 was a case where the court determined the employer was not vicariously liable, because an employee’s practical joke (which caused harm and injury), was deemed outside the scope of employment.
A more complex case, JD Wetherspoon PLC v Burger [2025], saw a customer suffer serious injuries while being restrained by third-party supplied door staff. The judge initially found the pub chain liable as they were integrated into the established team and protocols, but on appeal, the decision was reversed, as the contract was deemed to be “for services” rather than one “of service.” This underscores the need for proper contractual processes and structures, as well as clear definitions of duties and responsibilities. For employers navigating complex workforce arrangements, DavidsonMorris provides detailed practical guidance on different types of wrongdoing, worker roles, risk factors, and tests.
The off-the-clock problem
One fervent area where organisations underestimate their exposure is how employees conduct themselves outside of working hours or premises. Social events can be a common risk, particularly when alcohol is involved, with the company being brought into the frame if something goes wrong.
In Chief Constable of Lincolnshire Police v Stubbs, the employer was held accountable for harassment that took place between two off-duty officers during a social event. Given that the event was attended almost exclusively by employees and held at premises closed for their exclusive use, the court deemed it to be ‘in the course of employment’. The line between work and non-work is not as clear as many assume, a fact that emphasises why employers should make it clear that their policies and procedures apply in both professional and informal settings.
How to navigate liability issues
An employer will not be held liable for wrongful employee acts if they can show that they took reasonable steps to prevent the employee from committing the negligent act(s). However, that line of defence must be built firmly before an incident takes place. It is vital to:
- Review conduct policies: To ensure off-site behaviour and social events require a code of conduct.
- Audit contractor arrangements: Review and assess against current case law, rather than solely about cost and flexibility.
- Train line managers: Ensure they understand that ignoring or overlooking responsibilities outside of the workplace is just as important as doing so within working hours.
- Review insurance coverage: Consult resources from organisations such as the British Insurance Brokers’ Association (BIBA) that can identify whether an employer’s current coverage reflects the genuine scope of their exposure, particularly for off-site incidents and contractor-related scenarios.
Vicarious liability sits squarely within the culture of care and proactive risk management that good health and safety practice demands. Recent cases should serve as a reminder to employers that the factory gates or warehouse are not a boundary to your legal exposure, nor is the end of the working day whistle. The real question is whether your organisation is treating the issue with the seriousness it needs.
