Not in your backyard?


first_imgNot in your backyard?On 1 Sep 2003 in Personnel Today Related posts:No related photos. Previous Article Next Article Comments are closed. Whendoes an employer’s responsibility for its staff’s actions end? Recent casessuggest they face increasing risks of being found liable for their employees’behaviour, as Sarah Johnson explains Employerliability for their employees’ violent behaviour is becoming ever wider inscope. This is bad news, particularly for HR, given the increasing reluctance of liability insurers to pay outfor deliberate acts that cause injury.TheCourt of Appeal recently confirmed this trend when it ruled a nightclub ownerwas liable after a bouncer he employed stabbed someone outside his club (Mattisv Pollock (t/as Flamingo’s Nightclub), 2003, EWCA Civ 887, and the victim wasleft a paraplegic. The court heard that the bouncer had been involved in anincident with Mattis and his companions at Pollock’s nightclub. The bouncer ranhome, picked up a knife, and returned 15 minutes later to stab Mattis outsidethe club, severing his spinal cord.Employersare legally responsible, or ‘vicariously liable’ for the behaviour of theiremployees if it takes place ‘in the course of their employment’. Liabilityderives from common law and discrimination legislation. So how could Pollock beresponsible for such a violent act which did not even take place on hispremises?Thefactors that were taken into account by the appeal court in this case providesome important lessons for avoiding liability.–Pollock encouraged his bouncer to perform his duties in an aggressive andintimidatory manner. Solution: Do not allow, encourage or give instructions forunlawful conduct. –Fellow employees warned Pollock the bouncer was ‘dangerous’ and ‘a bully’.Pollock seemed to see his reputation as an advantage. Solution: Act on warningsand take steps to prevent unlawful conduct.–The bouncer was not licensed as a doorman, and should not have been employed atall. Solution: Do not employee unsuitable staff.–How closely connected an act is with the performance of the employee’s dutieswill be crucial. Employers are at greater risk of liability for violence ifthey authorise an employee to deploy it in the course of employment, or employhim to keep order and discipline. For example, employers are more exposed toliability for an employee’s thefts if engaged to look after property; orliability for abuse if employed to care for and supervise others. Solution:Take particular care where duties may involve danger to others’ safety orpossessions.–Although the bouncer went home and armed himself before returning to thevicinity of the club, where he stabbed Mattis, it  was effectively the culmination of an incident (a fight) whichstarted within the club while he was working and occurred during his working hours.Solution: Do not allow incidents to start at the workplace which could developinto something more serious.CommonlawUndercommon law, courts used to look at whether an employee’s act could be viewed ashaving been authorised by the employer or as a wrongful or unauthorised mode(method) of doing some act authorised by the employer. Theproblem with this test was that, the worse the employee’s behaviour, the lesslikely it was that the employer would be liable. However,in Lister and Others v Hesley Hall Ltd, 2001, IRLR 472, the common law test ofvicarious liability was redefined.TheHouse of Lords held that when deciding whether an act had been committed in thecourse of an employee’s work, courts should concentrate on the relativecloseness of the connection between the nature of employment and the employee’swrongdoing. Thismakes it easier for an employer to be found vicariously liable. Thedifference in approach is highlighted when you compare Lister with the earliercase of Trotman v North Yorkshire County Council, 1999, IRLR 98 CA. In thatcase, a boy sued the council on the basis that it was liable when his deputyheadmaster sexually assaulted him on a school trip. The Court of Appeal heldthat the council was not liable for its employee’s behaviour; the indecentassault was an independent act outside the course of employment. It was not amode – albeitan improper or unauthorised mode – of doing what the deputyheadmaster was employed to do. The case was overruled by the Lister verdict.InLister, a boarding school owner was sued by boys who were sexually abused bythe school warden. The House of Lords held the employee’s position as warden,and the close contact with the boys his work involved, created a sufficientlyclose connection between the abuse and the work he was employed to do, to holdthe employer vicariously liable for his behaviour. The assaults were committedin the employer’s time and on its premises while the warden was caring for theboys. Thepotential for employer’s liability was expanded in Dubai Aluminium Company Ltdv Salaam and Others, 2002, UKHL 48. Historically, employers were lesslikely  to be held liable for employees’dishonesty than for their negligence. In Dubai, it was held that vicariousliability cannot be avoided just because the employee’s wrongdoing wasintentional, criminal, for his own exclusive benefit or contrary to expressinstructions. The closeness of connection between the duties he was engaged toperform and the wrongdoing must still be considered. DiscriminationEmployers’liability for their employees’ actions is easier to establish underdiscrimination statutes, although recent cases make the difference less marked.Underthe Race Relations Act 1976 (RRA), anything done by a person in the course oftheir employment is treated for the purposes of the RRA as having been done bytheir employer as well, whether or not it was done with the employer’sknowledge or approval. Similar wording is used in the Sex Discrimination Act1975 (SDA), Disability Discrimination Act 1995 (DDA) and in other legislation,including that protecting fixed-term employees and part-timers and inforthcoming regulations outlawing discrimination based on sexual orientation,religion and belief. Discriminatoryacts by employees can be seen as being done ‘in the course of employment’ evenwhere what they were doing had nothing directly to do with their duties. Forexample, in Jones v Tower Boot Co Ltd, 1997, IRLR 168 CA, Jones suffered racialharassment from colleagues. His arm was burnt with a hot screwdriver, metalbolts were thrown at him, he was whipped with a piece of welt and repeatedlycalled offensive names.Theemployer was held liable for its employees’ acts of harassment. Under the RRA,SDA (and arguably other discrimination legislation), the words ‘in the courseof employment’ should be interpreted as they are in everyday speech, not usingthe more restrictive common law test.OutsideworkLiabilitycan extend to social events outside work. The key question is whether a socialgathering involving work colleagues is an extension of their employment. Factorsconsidered when deciding an employer’s liability for discrimination outsidework are:–Whether the conduct occurred on the employer’s premises–Whether those present were on duty/there during their working hours–Who was present–Whether it was a work-related social gathering or a chance meeting–Whether it was immediately after work, and–Whether the victim was socialising with the perpetrator.Liabilitywill depend on the facts. In Chief Constable of the Lincolnshire Police vStubbs, 1999, IRLR 81, EAT, Stubbs was subjected to inappropriate sexualbehaviour by a fellow employee at a pub and a leaving party. It was held thatthe employee was acting in the course of his employment. Although the incidentstook place away from the police station, they were at social gatheringsinvolving officers from work either immediately after work or for an organisedleaving party, and were extensions of the workplace. However,in Sidhu v Aerospace Composite Technology Ltd, 2000, IRLR 602, CA, Sidhu wasracially abused by a fellow employee outside working hours at a family day outat a theme park organised by his employers. The employers were not found to be liable.Factors in the decision may have been that the day out was not at theworkplace, everyone was there in their own time and the majority ofparticipants were friends and family, not employees. DefenceUnderdiscrimination legislation, there is a defence for employers to claims they arevicariously liable for their employees’ acts. The employer has to prove it tooksuch steps as were reasonably practicable to prevent the employee from doingthe act complained of, or from doing acts of that description in the course oftheir employment. It is not enough for an employer to show that an act was donewithout its knowledge or approval.Whetherthe defence will work will be a question of fact in each case. Simply having anequal opportunities policy is unlikely to be enough. Nor is giving a warning orcirculating a note saying the employer will not tolerate discrimination, if, inpractice, this is not what happens. It will need to show it complies with thepolicy, that the policy has been brought to employees’ attention and thatmanagers at least, are trained on discrimination issues, the policy’s contentsand how to comply with it.Liabilityfor third-parties’ actionsEmployerswho fail to take adequate steps to protect their employees from harassment bythird parties (rather than employees or agents) could also face liability.Theleading case on this was Burton and Rhule v De Vere Hotels, 1996, IRLR 596,EAT, where two black waitresses successfully claimed the hotel where theyworked was liable for racial harassment by Bernard Manning, the speaker at adinner, and some diners. Itwas held that De Vere Hotels was liable if it had caused or permittedharassment serious enough to amount to a detriment to occur in circumstanceswhere it could control whether it happened.Thequestion was whether the event was sufficiently under the employer’s controlthat, by applying good employment practice, it could have prevented or reducedthe extent of  harassment. No statutorydefence applied, but the employers would not be liable if they had takenreasonable steps to prevent or stop the acts in question. However,in Pearce v Governing Body of Mayfield School, 2003, UKHL 34, the House ofLords criticised the Burton case, ruling on the basis that it overlooked theneed to establish discrimination, and held that it was wrongly decided. Despitethis, employers should still take the necessary steps to prevent harassment oftheir employees by third parties. A discrimination argument could still beraised and failing to protect employees can lead to claims of breach ofcontract, constructive unfair dismissal and liability for consequent illness,such as stress.Otherareas of liabilityLiabilityis not confined to the employer/employee relationship. For example, there is a‘vicarious liability’ provision under the Partnership Act 1890 coveringpartners, and an individual (principal) will be liable for agents’ acts thatlie within the scope of its authority. Therefore, if an agency puts forwardonly white male candidates for a position on an employer’s instruction, bothcould be liable for sex and race discrimination.ConclusionRecentcases suggest that the risk of vicarious liability for employers is increasing.It is vital to take all reasonable steps to prevent employees from engaging inunlawful conduct – otherwise employers may find themselves paying heavily fortheir behaviour. However, if appropriate steps are taken, and employees aremanaged properly, the risk should be significantly reduced. SarahJohnson is a senior solicitor in the employment department at ManchesPracticalsteps to take to avoid vicarious liability–Have an equal opportunities policy in place, and follow it–Train employees on the policy, how to comply with it, and what is acceptable behaviour–Ensure breach of the policy is specified as a disciplinary offence–Nip unacceptable behaviour in the bud – don’t just turn a blind eye–Manage misconduct fairly and consistently, ensuring that unacceptable behaviouris dealt with under your disciplinary procedure, if appropriate–Carry out risk assessments–Ensure employees with access to children or other vulnerable people arecarefully vetted, supervised and trained –Ensure employees are aware that appropriate standards should be maintained evenoutside working hours – for example, at the pub after work –Remind employees of what constitutes appropriate behaviour before workfunctions, such as the Christmas party–Implement a confidential complaints procedure (with specialist training forcomplaint handlers)–Deal promptly and fairly with complaints and investigate them sensitively–Don’t allow a culture to develop in which complaints are trivialised, lettingconduct get out of hand.last_img

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