Q: Explain the extent to which an employer is liable in tort for the criminal acts of an employee.

Vicarious liability (VL) sometimes referred to as ‘imputed liability’ is a legal concept that assigns liability to an individual when the other person committed the tort whilst himself not committing any act. It is therefore a form of strict liability and the most common example be an employer being held responsible when the employee acted in a negligent manner. Prima facie, it might appear that it is unjust when someone who is not at fault be held liable for the act of others.

However, the aim of the doctrine is as such due to an employee usually deemed as a man of straw and soughting compensation from them will be difficult. As the question focuses on employer and employee relationship, the common issue arising would be the difficulty to determine what and who constitute as employee. In the employment contract, it is not always stated whether they are employee or independent contractor.

Generally, to satisfy a claim under VL, there are three pre-requisites. Firstly, the wrongdoer must be an employee. Secondly, the employee must have committed the tort and lastly, the tort must be committed during the course of employment. Over the years, courts have been highly inconsistent in relation to this area of law to a certain extent that it is inappropriate to hold the employer liable for the wrongdoings of the employee.

At the initial stage, court utilised the ‘control test’ to distinguish an employee from independent contractor. As seen in Mersey Docks v Coggins, a person (master) who has the right to control over what another person does and the way it was done by the employer. However, this approach is deemed inappropriate when it involves highly skilled workers that has independent judgement will result the test ineffectively.

As court find that such single test is insufficient, the ‘multiple test’ or ‘economic reality test’ was developed in the case of Ready Mix Concrete v Ministry of Pension. Mc Kenna J held that all factors in relationship should be considered and listed down several conditions that has to be satisfied. For instance, employee agrees to provide work and skill for payment in return; employee expressly or impliedly subjected to employer’s control; the terms of contract are consistent with contract of service.

Nevertheless, the court’s position today seems to go beyond traditional relationship of employer and employee. Instead, a literal interpretation is preferred. Previously, apprentices and trainees as of Wilshire Police Authority v Wynn’s case are not identified as employee despite them carrying out activities associated with the employer. It is identified that courts began to recognise such employment relationship as per the case of Various Claimants v Catholic Child Welfare society.

Lord Philips in the instant case states that ‘the institute which created the position to the teaching brothers and allow them to commit the tort’ is sufficiently akin to the the employer – employee conduct. More recent, in 2016 the case of Cox v Ministry of Justice , Lord Reed delivered that a prisoner involved in the prison’s kitchens are intergrated as part of the operation of the prison thus nominal wages were given. Such close relationship strengthens the impose of VL.

To consider the extent of which employer is liable in particular criminal acts, the courts ruled that in the case of borrowing or lending employees, Viasystems v Thermal Transfer held that both of the employers will be held jointly liable as they shared different but equally important aspect of control over the employee. Alternatively, Hawley v Luminar Leisure’s case made a distinct decision of making the borrowing employer liable as the employee was acting under their instruction.

Following, there are actually exceptions which the employer might not be liable for the wrongdoing of an employee. This is particular during the course of employment, where Salmond Test clearly states that only an authorised wrongful act or an authorised act in an unauthorised manner would make the employer liable. As the case of Storey v Ashton, if the employee committed the tort ‘on a frolic of his own’, no vicarious liability is established.

In the event if there is an express prohibition by the employer to the employee on certain act, the court’s position is to determine whether the act was carried out within or outside course of employment. Pursuant to Twine v Bean Express , providing a lift to a stranger was certainly not an act required during the course of employment thus the employer are held not liable.

Contrastingly, in Rose v Plenty, despite the employee disregards the prohibition and commits the act, court held that albeit the prohibited made, he is just doing the job he was entrusted on.Thus, the employer is still made liable on policy grounds. This is differentiated in Limpus v London General Omnibus where the act of driving was authorised but racing was improper way of driving. Therefore, court held that as it was the mode of act that differs only, the employer still benefited from the driver’s racing thus being held VL.

To address the criminal acts done by employees, the case law prior and post Lister v Hesley Hall has to be discussed accordingly. In Lister, a warden sexually abused young boys at the house he was employed to look after. The crucial question posed by HOL is then whether the warden’s tort was so closely connected with this employment that is will be fair to hold the employer VL. Prior to Lister’s case, it was Poland v Parr, the test used was Salmond and not the close connection test. Thus employer would only beheld liable for the employee criminal act only if he was acting within the scope of authorised acts, I.e. protecting employer’s property.

Lord Hobhouse in Lister stated that the tort must be sufficiently close with the work, for instance, because the warden had to supervise boys and the abuse occurred during it, there is close connection and employer is held liable. Charles Pigott in article entitled ‘Making a Connection’ wrote that Lister achieved a breakthrough as one year before the incident, COA decided in Trotman v NYCC that no VL could attach for sexual abuse as it could not be regarded in any sense as mode of carrying out an employee’s duties.

Certainly, Lister’s decision widened the scope of VL in particular an employer being held liable for the criminal act of an employee. The decision of Lister is even precedented by many cases like Mattis v Pollock, Mega v Trustees which also involves sexual abuse of a young boy. Last but not least, it is unclear as to whether the ‘close connection test’ will replace Salmond test or to be restricted to cases of criminal conduct only.

In a nutshell, as Desmond Ryan in his article, ‘Close Connection and Akin to Employment: Perspective on 50 years of Radical developments in Vicarious Liability’ mentioned that there are obvious radical shifts on the close connection test. This is in particular of when and how VL can be imposed from an intentional wrongdoing. AM Mohammad v Morrison Supermarket shows the recent approach that courts will judge on a case to case basis direction to achieve justice.

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