Are you liable for the misdemeanours of your employees?

What do the following have in common? A managing director punches an employee at a drinking session in the early hours; a self-employed doctor sexually assaults a bank’s prospective employees during pre-employment medical checks; a petrol station attendant violently assaults a customer; and an IT auditor releases personal data for staff at Morrisons?  The answer: the employer was held liable for each of these incidents.

In light of recent judgments showing the courts’ preparedness to find employers liable for wrongful acts towards employees and customers, Richard Porter, employment law expert with Thompson Smith and Puxon in Colchester and Clacton, outlines the ways employers can be held to be liable and what employers must do to protect themselves.

Discrimination and harassment

If one of your employees discriminates against a job applicant, such as by refusing to recruit because of the applicant’s race, or your employee harasses a colleague by using inappropriately sexual language, you may be liable for this. It does not matter that you did not sanction this behaviour or even that you did not know about it.

Protection from discrimination and harassment, and the scope of your potential liability, covers not just your employees and job applicants but also workers engaged by your business. In light of recent case law, this could include individuals who are described as self-employed contractors.

Employees causing harm to others

Employers will be liable for an employee’s wrongdoing or negligence where there is sufficient connection with the employee’s employment. The courts have found this connection even where the employee commits a criminal act.

Recent examples include a senior IT auditor with a grudge against his employer, Morrison Supermarkets, who released onto the internet personal information about nearly 100,000 Morrisons employees. While the Court noted (with some sympathy) that the supermarket could have done little to have prevented the breach, it went on to find them liable for the auditor’s serious breaches of data protection law nonetheless. Last year, the Court of Appeal found a company liable for damages in respect of an employee’s brain damage which was caused by the managing director punching the employee to the floor at a post-Christmas party drinking session.

The connection with the employer in the Morrison’s case was found because handling employees’ personal data was a significant part of the auditor’s role. In the second case, the work function had led on to the drinking session and the managing director was holding forth about his management decisions when he hit the employee.

Liability for self-employed contractors

The scope of liability does not stop at employees. You may even be found liable for the wrongdoing of an individual working for your business as a self-employed contractor. The Court of Appeal found Barclays Bank liable for sexual assaults committed by a self-employed GP engaged by the bank to carry out medical examinations of employees and job applicants. Having looked at the relationship between the bank and the GP, the court concluded that the relationship was akin to employment.

How can I protect my business?

There are steps you can take to help defend your business from claims arising from one employee alleging that another employee has discriminated or harassed him or her. You need to be able to show that you took reasonable steps to prevent the discrimination. Having up-to-date equalities and anti-harassment policies is helpful. Ensuring that these policies are used and staff are trained to implement them is better.

It may be possible to manage some risks, for example by taking a zero-tolerance approach to aggressive behaviour or by taking unpopular steps like stemming the flow of free alcohol at work parties. Other risks will be unpredictable, and the only option is to ensure you have adequate insurance.

We can help you by identifying areas of potential risk, we can ensure that you have appropriate policies and practices in place and advise you on your liability for employees and we can deliver training to managers on Equal Opportunities, Unconscious Bias and other essential employment law subjects. Please contact the Employment Law team on 01206 574431.