There has been a spate of recent cases dealing with bullying in the workplace or even, in one case, of a manager kidnapping and torturing an employee. Where does the employer’s liability start and end on such cases?
A core part of the employment relationship is an obligation on employers to ensure that employees have a safe environment and safe systems of working within that environment. This is reflected in various health and safety provisions as well as discrimination laws. However, such systems are inevitably affected by failings in the people working within them. A recent issue to hit the headlines is how far employers can be “vicariously liable” for their employees’ bad behaviour towards one another and the public at large.
An employer can be said to be vicariously liable for negligent acts (or omissions) by employees in the course of employment whether or not such acts were specifically authorised by the employer. To avoid vicarious liability, employers must show either that the employee was not negligent or that the employee was acting in his or her own right rather than on the employer’s authorised business.
However, there has been a recent trend by the courts to view the range of “authorised” acts less restrictively. For example, the question arose in a recent case of a ticket inspector assaulting a passenger who failed to show a ticket is assaulting passengers merely a wrongful means of checking the tickets or is it outside the scope of employment altogether? You may ask how an employer could be held liable for the employee’s actions in such a situation. The court took the view that it must look in general terms at the job being done, rather than narrowly dividing each step, and held the employer, Connex Trains, to be vicariously liable. This means that even where an employee is doing an act that the employer never would have allowed, the act may still be so closely connected that it could be deemed part of the job. In perhaps the most extreme case, a residential school was found to be vicariously liable for a warden’s sexual molestation of children in his care. In that case, the court emphasised the “close connection” between the duty and the wrong and that it must be “just and reasonable” to hold the employer vicariously liable.
In light of these developments, it is very important for employers to be aware of employees’ behaviour and explicitly clear about what is unacceptable, in order to avoid being fixed with liability for their actions. Bullying and sexual harassment are a good examples of potential danger areas.
But this is not the end of the story. Employees’ behaviour that breaches health and safety legislation or even statutory duties may give rise to new liability upon employers (such as in the 2005 case of Mr Majrowski and Guy’s and St. Thomas’s NHS Trust which concerned a potential claim by an employee against a supervisor under the Protection from Harassment Act 1997 – a law designed to prevent any course of conduct amounting to harassment). Victims of bullying and harassment at work may now have an alternative remedy in pursuing a vicarious liability claim against the employer. The Court of Appeal’s judgment in the Majrowski case potentially extends the duty of care on employers to protect their employees from any ill treatment that could cause distress and anxiety.
Although it seemed previously that bullying would have to reach a certain minimum level and be known to the employer before liability could arise, this may not be the case, and employers should now be extra vigilant about the actions of their employees both inside and outside the workplace. Any tell-tale signs of bullying or harassment, even if this involves employers keeping “ears to the ground”, should be carefully considered and suitable monitoring established (but it remains to be seen whether this would help where the bullied employee can point to a course of harassment). Perhaps then, in specific cases, investigations may have to be undertaken of any “unauthorised” act involving one employee against another, with a view to avoiding vicarious liability claims (as well as other claims such as constructive unfair dismissal).