The Extent of Employer Vicarious Liability for Employee Criminal Acts

Question

To what extent does the common law render the employer vicariously liable for the criminal acts of his employee?

Answer

Vicarious liability is a legal doctrine that is rapidly developing, described by Lord Phillips as ‘on the move’. Employers’ tortious liability for employees’ criminal actions is no exception, as evidenced by the UK Supreme Court’s decision in March 2016 in Mohamud v Morrison Supermarkets, regarding a racially-motivated assault by a Morrisons petrol station employee on a customer. Here the Supreme Court confirmed that an employer may be found liable for an employee’s criminal actions, even where an employee was motivated by personal reasons, so long as the ‘close connection’ test is satisfied. This ‘close connection’ test for generally establishing vicarious liability was established in the landmark case of Lister v Hesley Hall, and requires the Court to evaluate the ‘closeness’ of the connection between the employee’s actions, and the actions expected of them in the normal course of duty. The leading judgment in the Morrison case emphasizes analysis of the ‘field of activities’ delegated to the employee and a ‘sufficient connection’ between the employee’s position and their conduct.

Whilst the justification for employers’ vicarious liability has been dismissed by some as part of a larger culture of blame and compensation, it can indeed be considered ‘fair and just’ that those who profit from a business should be liable for issues closely connected to their business. This is particularly so when one understands corrective justice and distributive justice as informing principles of tort law, as legal commentators such as Mullender argue ought be done. From this perspective, it is advantageous to victims in the instant case to be able to sue a party with deeper pockets to help in restoring them to the position they were in prior to the criminal action, as well as advantageous to society in terms of distributing resources in a more societally just fashion.

References

Various Claimants v Catholic Child Welfare Society [2012] UKSC 56.

Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11.

A Ohringer, ‘Paying for the mistakes of others: when businesses are liable for their workers’ misconduct’ (2016) 39(26) CSR 214.

Lister v Hesley Hall Ltd [2002] 1 A.C. 215.

Mohamud v Morrison (n 2).

S.S.H Chan, ‘Hidden departure from the Lister close connection test’ (3 August 2016) LMCLQ 352.

J Martin & T Storey, ‘Unlocking Criminal Law’ (Routledge, 2015) 185.

R Mullender, ‘Corrective Justice, Distributive Justice and the Law of Negligence’ (2001) 17(1) PN J 35.