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Vicarious liability: when is an employer responsible for what an employee does? — Articles

Vicarious liability is a form of secondary liability. It allows a court to hold one person legally responsible for the civil wrong (tort) committed by another, without the first person having done anything wrong themselves. In practice it most often applies to employers.

The basic rule

An employer is vicariously liable for a tort committed by an employee if it was committed "in the course of employment". This does not mean during working hours — it means while the employee was doing something sufficiently connected to their authorised duties. The leading test comes from Lister v Hesley Hall Ltd [2001] UKHL 22, where the House of Lords held that a warden's sexual abuse of children at a care home was so closely connected to his duties that the employer was vicariously liable.

The "close connection" test

After Lister, courts ask whether the employee's wrongdoing was closely connected to the work they were employed to do — not just temporally or geographically, but in terms of the risk created by the job itself. A security guard who assaults a customer while on duty is more likely to engage vicarious liability than an off-duty employee who assaults someone during a private dispute.

Does it apply to independent contractors?

Generally, no. The Supreme Court confirmed in Barclays Bank plc v Various Claimants [2020] UKSC 13 that vicarious liability does not usually arise for the acts of independent contractors, because the relationship is not sufficiently akin to employment. Whether a worker is an employee or contractor is therefore commercially important — not just for tax purposes but for liability exposure too.

Why it matters in practice

If you have been harmed by someone acting in the course of their employment, you can sue both the employee and the employer. Suing the employer is usually more practical: they are more likely to have the funds or insurance to meet a judgment. Employers are required by law to hold Employers' Liability insurance under the Employers' Liability (Compulsory Insurance) Act 1969. The policy must cover at least £5 million per claim. GOV.UK explains the insurance obligations and how to trace an employer's policy.

This article is for general information only and is not legal advice. Always check the official source and consult a qualified lawyer for your situation.

The basic rule

The "close connection" test

Does it apply to independent contractors?

Why it matters in practice

Questions about this article