Join the queue if you are not quite clear about what is meant by vicarious liability, writes Conor Hannaway.
It is a legal construct which, for the most part, has developed in the courts rather than in legislation for more than 100 years. It is a continuously evolving segment of law which is very different now than it was when it originally emerged. Part of the confusion regarding it arises from the gap between its original meaning and how it now applies.
Vicarious liability is no stranger to the healthcare system. It occurs when a person, or more frequently an organisation, is responsible for the acts or omissions of another. An organisation’s liability is usually related to the acts of its employees, although there are circumstances where it will relate to other people such as sub-contractors. Most frequently, the acts which give rise to vicarious liability relate to service delivery, health and safety issues, fraud and, dignity at work issues. This article is primarily concerned with the latter cases although, for the most part, the basic, current legal rules apply in other areas.
In the past, there were quite onerous rules determining whether the employer had liability for its employees, servants or agents. The movement of the law has been in the direction of holding the employer liable so as to meet the social need of providing recourse for an injured party – most often an individual who has suffered loss. There is now strict liability such that the employers are always liable for the acts and omissions of their employees who are acting in the course of their duties. To that extent, there may be a sense of injustice felt by employers who may feel that they did everything they could to ensure that the harm did not occur.
There is now strict liability such that the employers are always liable for the acts and omissions of their employees who are acting in the course of their duties.
The core element of vicarious liability, which has continued from the earliest iteration of the legal construct, is that the person must be acting in the course of their duties. In the original formulation, the employee had, essentially, to be doing work directly related to the carrying out of their duties. Over the years, the law has changed such that the employee responsible for the damage, injury or loss has to be shown to have been doing work directly connected with his duties. Thus it was that child abuse, certainly not part of an employee’s duties, can be seen to have occurred in connection with the work of people who are responsible for safeguarding them or who come in direct physical contact with the victim in the case.
Irish law is not fully developed with regard to vicarious liability. Recent cases show a divergence in opinion at the highest levels of the judiciary. It is easy to see how negligence in the performance of a person’s duties is connected to the work, what happens if the wrong which they do is not negligence and is not connected to their role?
Where a manager engages in persistently targetting a staff member for bullying behavior unrelated to their work, then the connection between the wrongful behavior and their work may be sufficiently removed so as not to give rise to vicarious liability. However, the possibility of bullying behaviour is foreseeable and the organisation would be expected to be able to show that it has done everything possible to provide a safe place of work.
The framers of equality legislation anticipated the problem that many instances of harassment and sexual harassment might not fall under the heading of vicarious liability. It therefore included a provision (s15) which provides for vicarious liability being imposed on an employer in respect of of actions being taken under the Act.
Notably, the Act also provides a defence to employers who can demonstrate that they took such steps as were reasonably practice to ensure that no breaches of the Act occurred. In this regard, the steps usually include four elements: having a policy (in line with best practice)/ ensuring that managers are trained to implement it, communicating the policy to all staff, and taking all the actions necessary to bring any reported actions to an end.
There is also a form of liability akin to vicarious liability which applies to managers who do not take the necessary actions to ensure that dignity at work issues do not arise in the workplaces for which they are responsible. Managers need to be vigilant to ensure that they are not liable. They too must take the necessary steps to ensure that breaches of the dignity at work policy are not taking place and that the four elements described above are operating effectively in their workplace.