It is well established that employers can be liable for the actions of their employees that are carried out ‘in the course of employment’. This is known as vicarious liability. It means that an employer can end up being liable for the misconduct of an employee if there is a sufficiently close relationship between what the employee has done wrong and their employment. This also applies to park owners.
Vicarious liability and park owners
Vicarious liability can be a real issue of concern for park owners where it can crop up in relation to how an employee behaves with other employees as well as residents or guests on the park.
Tensions can arise where people not only work, but also sometimes live, in close proximity with each other. Arguments can escalate into types of behaviour that you want to prevent on site.
Everyone has protection in law against harassment, discrimination, and criminal offences such as assault. Employers can be held liable for such actions where they are carried out by their staff. This means someone can bring a successful claim against an organisation simply because of an employee’s unauthorised actions. Our employment team has advised employers, including park owners, about such issues where members of staff may have behaved in an inappropriate, or even an intimidating way, towards their colleagues and park residents.
Recent case law
Cases involving employers and vicarious liability have included some extreme acts carried out by staff where employers have been held to be liable. A recent case involved an employee of Morrison Supermarkets. The Supreme Court held that the supermarket was vicariously liable for an employee’s unprovoked violent assault on a customer. The court found there was a sufficiently close connection between the assault and the employee’s job of attending to customers, so that the employer was vicariously liable.
Recently the courts have been more wiling to say that an employee’s actions are closely connected with their employment, even if the employer would not have approved them. In the case mentioned above the Supreme Court further undermined the concept of an employer not being liable where it can be said an employee has been, ‘on a frolic of their own’. This is a term used to describe acts which are considered to be outside the course of employment and therefore not covered by vicarious liability. This case law means that employers can be held liable and face successful court claims from individuals even where an employee’s actions could be seen as extreme and unreasonable.
Preventing vicarious liability
So what steps can you take to prevent being vicariously liable for the misconduct of your staff? Recent case law underlines the importance of training and ensuring that employees’ behaviour not only with colleagues, but also members of the public, is exemplary. There can be a defence to some acts of misconduct where an employer has taken reasonable steps to prevent this from happening. This would apply to acts of discrimination, including discriminatory harassment under the Equality Act, for example, on the basis of a person’s gender, race, age or a disability.
Reasonable steps include having relevant anti-bullying, harassment and discrimination policies, ensuring employees know about and follow them, providing staff with relevant training, and ensuring that appropriate action is taken when a policy is breached.
Establishing a defence can be harder for employers with other types of claims, such as a civil claim under the Protection from Harassment Act. This act protects individuals against harassment that does not necessarily include an element of discrimination. The “reasonable steps” defence is not available here. But, such claims must include a “course of conduct”, which means two or more incidents of harassment. So, if you hear about this taking place it is important to nip it in the bud immediately.It also remains good advice to take steps to prevent it from happening in the first place.
Laura Mcfadyen is a partner based in Stephens Scown’s Exeter office. She is an HR and employment law specialist and part of the firm’s parks team. For more information please contact Laura on 01392 210700 or email email@example.com