Scope of employment

An employer was sued recently by a worker after he suffered injury when a colleague aimed a kung fu kick in his direction in an attempted joke. Inevitably, the joke went horribly wrong and the claimant was rendered partially blind — cutters the claimant was holding were struck by his colleague and went into his eye.

While there is no doubt the co-worker was negligent, one of the central issues was whether this random act could really be so closely connected with the course of his employment that the employer should be liable for it.

As is well known, an employer is responsible for the acts of employees committed in the course of employment. Broadly, the test for vicarious liability is: was the act so closely connected with what the employer authorised their employee to do that it should be regarded as a mode, although an improper mode, of carrying out their employment?

The concept of making one person liable for another's conduct is well settled and based on logical policy considerations. However, the last few years have seen the courts imposing liability on employers for acts seemingly far removed from their employee's course of employment.

Widening scope

This trend came to prominence with the House of Lords' decision in Lister and Others v Hesley Hall (2001) in which it was held that sexual assaults carried out by a warden of a school boarding house on boys in his care were sufficiently connected with his employment as to impose vicarious liability on his employers, since he had been employed specifically to care for the boys.

The Lords advocated a broad assessment of the nature of the employment. Another infamous decision was Mattis v Gerrard Pollock (2003) in which a nightclub proprietor was found liable for an assault carried out by a doorman that was working for him — notwithstanding the doorman had left his post, gone home, fetched a knife and then returned to the club to stab his victim.

The Court of Appeal took into account the fact that the doorman was employed to keep order and was encouraged by his employer to perform his duties in an aggressive and intimidatory manner. The court held that, where an employee is expected to use violence while carrying out their duties, the likelihood of establishing an act of violence fell within the broad scope of their employment is greater than it would be if they were not.

This reasoning was followed in Gravil v Carroll & Redruth Rugby Football Club (2008) in which the conduct of a rugby player in punching an opponent was found to be so closely connected with his employment as to make his employers, Redruth Rugby Club, liable for it.

A more obvious comparison with the recent case involving a kung fu kick that went wrong is Harrison v Michelin Tyre Company (1985), a first instance decision. As a joke, Mr Harrison's colleague tipped up a duck board he was standing on, causing him to fall and injure himself. The defendants contended that the errant colleague was on a frolic of his own. But it was held that, while the defendants would never have countenanced this unauthorised act, it was still so closely connected with the employment as to be incidental to it — making the defendants vicariously liable.

The court provided some useful guidance, stating that the act was not "so divergent from the employment as to be alien to and wholly distinguishable from the job".

There are fewer cases giving guidance as to what is outside the scope of employment. Examples of such conduct have to be looked hard for. However, the Court of Appeal authority of Aldred v Nacanco (1987) gave some assistance. Ms Aldred suffered injury when a colleague pushed a basin into her back. The court held that the colleague had not been doing her job in an improper way but was doing something wholly outside her job.

Though Aldred was decided quite some time before Lister, it has not been overruled by it. Indeed, Aldred was specifically referred to by Lord Clyde in his judgment in Lister as an example of an act that was not sufficiently connected with the employment as to found vicarious liability.

It is important to distinguish between what is required by the job and whether the job simply gives an employee the opportunity to commit a tort. The latter does not of itself give rise to vicarious liability. For instance, in Maga (By His Litigation Friend the Official Solicitor) v Trustees of the Birmingham Archdiocese of the Roman Catholic Church (2009) the Church was held not liable for a priest's sexual abuse of a boy who had carried out small jobs for him.

While the priest's job had brought him and the claimant into contact, the claimant had not been drawn into the activities of the Church and the assaults were not, therefore, so closely connected with the priest's employment that it would be fair and just to hold the Church liable. Similarly, in Irving v Post Office (1987) a postman's conduct in writing racial comments on post addressed to British citizens of Jamaican origin was not within the scope of his employment, which had simply afforded him the opportunity to carry out the act.

There is no simple test to apply to every set of circumstances and it remains a question of fact for decision in each case. But by arguing that the claimant's colleague's work merely gave him the opportunity to carry out the tortious act — in the case involving the kung fu kick — and that the colleague was not acting within the course of his employment, it was possible to settle for substantially less than the claim was worth. Thus, while the recent judicial trend has been to make employers liable in far from obvious circumstances, it is still worth considering whether a specific act is within the course of employment.

Will Jones is a partner in the insurance division at Langleys Solicitors