The two cases of Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd were heard together by the Court of Appeal recently. Both considered whether employers were vicariously liable for violence committed by their employees in response to lawful requests and instructions. Gemma Hill looks more closely at the combined case and explains how the different outcomes of the two cases have highlighted the scope of vicarious liability for employers.
The legal position
An employer is vicariously liable for the wrongful acts of its employees (known as ‘torts’) where they occur in the “course of employment”. Case law has indicated that this term should be interpreted widely and the key question is:
whether the [employee's] conduct is so closely connected with his employment that it would be fair and just to hold the employers vicariously liable".
The cases and decisions
In this case an employee was at home when he received a telephone call from his manager asking him to attend work due to a staff shortage. The employee in question was drunk and felt that his manager was mocking him for his drunken state and cycled to the workplace following the call and attacked the manager. The attack happened 20 minutes after the call.
Both the County Court and Court of Appeal came to the same decision. Although the courts accepted that the incident would not have happened but for the employment it held the employer not to be vicariously liable in this instance. Albeit the attack happened at the workplace, he was off duty and the call was simply a pretext for the employee’s violence, which was unconnected with his work as a health assistant. It was viewed as being an “independent venture” of the employee who was "acting personally for his own reasons".
In the second case an employee was at work when he was given a reasonable instruction by his manager to correct an incorrect procedure that he was following. Immediately following this request, the employee violently attacked the manager. It was known that it could sometimes be difficult to communicate instructions to this particular employee.
The county court found that the employee had not been acting in the course of his employment when he assaulted his manager and therefore there was not a sufficiently close connection between the employment and the assault (i.e. the tort) to render the employer vicariously liable.
On appeal, the Court of Appeal reversed this decision and held that the employer was vicariously liable – although “not without hesitation”. The decision was as a result of the following findings:
- that friction was an inherent possibility in the factory workplace, where instant instructions and quick reactions are required;
- that the attack was “a spontaneous and almost instantaneous, if irrational, response to an instruction”; and
- it had a close relationship with the employment in time and space, although the use of force was not inherent in the nature of the employment.
They held that a reaction to instructions, normally by way of carrying them out, is a part of employment. Therefore, it was held that the tort flowed directly from the fact that the employee was given instructions by a senior colleague in the course of his employment.
Tips for employers
The crux of the Court of Appeal’s considerations in each case was the connection between the act of violence and employment. The Court held that a broad view must be taken of the nature of an employee’s employment and what was reasonably incidental to the employee’s duties when considering his or her violent act. However, it emphasised that not every violent act committed by one employee against another employee in response to a workplace instruction will result in the employer's being vicariously liable and made it clear that each case will be heavily reliant on its individual facts.
Nevertheless, this case serves as a reminder to employers about the fact that they may find themselves liable for the wrongful acts of their employees (including violence), even if they have had no direct control over them. It is important to remember that these acts may be against a fellow employee or a third party, for example a contractor on site; they do not have to be between two employees. As above, the risk will exist where there is a sufficient connection between the violent act and the employee’s employment. The case of Wallbank has shown that this connection can exist even where the reaction of the employee to a lawful instruction was so severe and outside the realm of expectation. The extent to which the nature of the employment increases the risk of violence is also likely to be relevant.
Given it can be so difficult to predict such acts before they occur or whether there will be liability, employers must ensure that they maintain a “zero tolerance” policy to violence or aggression in the workplace. Should any acts of violence or aggression occur then they must be dealt with in a robust manner, most importantly, by reference to a disciplinary procedure. This policy should be regularly reviewed and employers should ensure all employees are aware of it.