Vicarious Responsibility and the UK Law - Essay Example

Vicarious responsibility and uk law by Vicarious liability has a great meaning especially for the employees/ and the employers and it refers to a situation of being held responsible for the actions or omissions of another person. For instance, in the context of work the employer is liable for the actions or omissions of the employees but only if this is done and proved that it took place in the course of their employment (Faure, 2009). Due to the conditions of the vicarious responsibility and the English law there have been some arguments and discussions. As a result, this essay aims at discussing in details if there can be a convincing argument to justify the boundary English law sets between acts of employees for which the employer is liable and those for which the employee is liable. Personally, I think that the argument is two- way -traffic for instance, there is a convincing argument for there is a justifiable distinction highlighted which clarifies what the employer ought to do in order not to be held responsible. Therefore the employer just needs to read in between the lines to make sure that he plays save at all times. On the other hand, it can be said that there is no convincing argument given the fact that some concepts in the law states that the employer can be held responsible even though the employee is no longer working in the premises. To start with, there are so many employers who have little awareness that they can be liable for a range of actions or omissions which are committed by their employees especially in the course of their employment. These actions comprises of violent, bullying, discriminatory act, breach of copyright, being liberal and bullying among others. In addition, it is possible that the actions can be taken against the employer for the behaviors of even the third party the like of the clients and customers if they are controlled by the employer. Therefore there is a convincing argument because the law clearly stated the relationship or the link between the employer and the employee which makes the employer liable for the omissions or behaviors of the employee. On that note, when it comes to vicarious liability one can only have one key question which is whether the employee was acting in a personal capacity or in the course of their employment? More so, it is possible to also ask if the employers’ liability ends with the dismissal of the employee from the organization or if the employee leaves the organization. Nevertheless, the law states that actions can be taken against the employer even though the employee has left the organization. On a similar note the law lacks a convincing argument in that it fails to create a clear distinction on who is and employee. Grammatically, an employee is a person who is working under direct guidance of the employer and so there is no way a person can continue to be termed as an employee of a particular organization even after resigning or dismissal. So the law has no justification when it comes to the employee from the organization. The distinction between the employer and employee vicarious liability and responsibility can create confusion for it seems to be well defined. Hence, it leaves only the argument basically on whether there are any practical steps which can be taken by the employers in order to avoid the vicarious liability for the actions of their employees. I think that the employers need to be very careful and to apply reasonable steps which can prevent some actions or omissions from taking place in the first place. For instance, there is a need for the employer to have a good and an up to date policy. The policy should have rules that protect all employees by giving them equal opportunities. For example they can offer some training aiming at combating any anti-discriminatory acts within and outside the work environment. This in itself can save the employer and give him an opportunity for the reduction of being held vicariously liable for the discriminatory actions or behaviors committed or portrayed by the employees. This in itself justifies clearly the boundary English law sets between acts of employees for which the employer is liable because it informs the employer on pre-actions which can help him/her to avoid being held responsible. However, the question still remains if the court will be convinced enough that the employer has done his best when it comes to training the employees on certain issues. Hence, the justification can only arise if there is a very distinctive direction on what is needed for the employers to be fully clear from the law. Firstly, the relationship plays a very vital role in the justification and so it is the responsibility of the employer to classify the type of relationship he/she has with the employee. For example is the relationship of the independent contractor or there are factors that are representing the relationship of the employee. Therefore, the justification presents itself by the means and terms applied prior to the hiring of the employee though the key lies on how clear was the employer while orienting the employer. So there is a good distinction on who is liable when it comes to relationship for it leaves a room to clarify if the employment is permanent, or contract basis. When it comes to contract bases the employee is liable for the actions done outside the work premises and the employer may have nothing to do with this for he/she might not even be aware of the duties of the employee after work. While the employment is permanent the employer can be held liable for the behaviors of employer if he did not take time to train the employee on the work ethics as well as the after work ethics. Additionally, a liability can only be implied if the employer dictates the work to be done as well as how it should be done. This can only apply where distinct instructions are given to the employee by the employer which makes him a direct link to any harm that can occur. On the other hand, if the employer has no any guideline on how the work should be done or how a particular thing should be carried out then it indicates that the relationship has changed and so there is an employer and independent contract or and not a dependent contractor who just does as he is told without questions or any additional thought whatsoever. English law establishes a general rule implying that the employer is not liable for the actions of an independent contractor but only for his servants, agents though the acts are conducted for his benefit under the contract. So the convincing argument lacks in that the determinant factor on whether the actual wrongdoing is a servant or agent or of an independent contractor can only be determined by the actual instructions of the employer or what is to be done. If the employer retains the control of the actual performance this means he is working with a servant or an agent but if he prescribes the work and leaves the actual performance to the other party this means he is working with an independent contractor. This creates an exception because it leaves a space if someone could prove that the employer failed to supervise the independent contractor properly or there was a fault in the recruitment procedure, then the employer might be held liable once again. Besides that, employers having a non-delegable statutory duty might not evade with the excuses of independent contractors. If an employee has a breach of a statutory duty the employer can be held vicariously liable. This does not consider the fact that the employee statutory duty is attributed entirely to the employee. even in the case of harassment within the workplace; this does not consider whether the employee was bullied or harassed by another person. Therefore, the employer is given little or no chance to justify himself/herself. Secondly, if the employer conducts himself/ or herself becomingly by training the employees and giving the the set rules acceptable in the work environment and how the employees are supposed to conduct themselves in and out of work there the chances to be held responsible for their mischief are very slim. Additionally, the employee given the training and having been given the organization guidelines pertaining to the acceptable conduct could only have himself to blame if caught on the wrong side by the law. For example, if an employer is caught using discriminative language he/she can be punished or held liable without having to put the employer on any problem. Maybe john is caught calling a black American Niger or using an abusive language to refer to a particular person or group of employees who are of different race. John can be held vicariously responsible for his actions and judged without the involvement of the employee. However, if the employer has been so reluctant in giving guidelines on the conduct of the employees the actions of employees will surely catch up with him. For instance, in the case of John named above, he can argue or claim that he has not been told or cautioned on how to conduct himself and so the employer having no work rules or training will be also held liable for Johns misconduct. Therefore, it becomes a bit difficult to have the distinction of who is liable and who is not liable given the fact that the employee can justify himself by even lying to save himself from the law. For instance, in john’s case he can even say that the employer has used similar terms while referring to some employees and so he is just taking after him. While such information is recorded or voiced out there is no way that the employer will be set free for the actions of John and so he has no other way than to face the punishment. In addition, the employer is very aware that actions like being violent, bullying, breach of copyright, being liberal and bullying among others are held liable to him/her if he has not taken any measures. This means that he can be held vicariously liable if the employee commits any of the above actions especially if he has not informed them and given them any teachings or booklets of the organization ethics. The distinction and the justification of the law arises from the fact the UK law has made it clear the conditions of which the employer is held responsible. It is the duty of the employer to conduct seminars or create room for interpersonal relationship forum or discussions. This will ensure that the employees are familiarized with what is required of them and are able to internalize the meaning and the repercussion of breaking the organization norms. Therefore, if the employee is well informed by the employer and is well aware there is no way the employer can be held responsible for his/her mistakes? However, I find this not justifiable enough because the employer has no control over the actions of the employee. He can surely do his part but it is clearly known that a person chooses to act as he/she wishes and so despite the training given a person cannot force the other to do as he wishes. The ethics are there to guide and give direction but not to control forcefully how a person opts to act in certain occasions under different conditions and so it is not fair enough to held an employer liable for the actions of the employee especially if they are committed incognito (Social responsibility in labour relations,2008). Thirdly, the law has a very justifiable distinction on who will be held responsible between the employer and the employee on the basis of personal capacity. However, the distinction between an employee who is acting in a personal capacity and acting in the course so his employment can be very slim at times. So the employers are required to have adequate insurance in place in order to be able to cove the personal injury claims particularly if they can flow from injuries occasioned by assaults by the colleagues (employees). For example a worker is working in a restaurant and he receives a call from the Managing director which he refuses to pick and then another employee is asked to inform him that he should come for the night shift instead of the day shift. The employee refuses to adhere to the information passed on to him, he then turns up and assaults the employee who passed on the information. This is very clear that he is working on his personal capacity and has own reasons and he acts violently as an excuse for his frustrations it means that his violent behavior is not connected to work and so the employer cannot be held vicariously liable. The UK law states very clearly that an employee during his course of employment can be held responsible if he is caught against the law. Similarly the employer can also be held vicariously responsible for the same reasons. Nevertheless, the employer can be saved if there seems to be no subordinated relationship, wrong act and taking place in the course of employment. Therefore, the employer have a duty to ensure that his /her contract clearly states t nature of the contract, the unacceptable actions and that he does not entertain employees who act under the personal capacity especially in the work environment (Cassidy, 2006). Vicarious liability also fits perfectly in discriminatory cases in that employers can be held liable for discriminatory acts by their employees committed in the course of their employment. Nonetheless, a statutory defense is linked to the discriminatory actions and especially if the employer is able to show that he has taken all the precautions and desirable measures to combat it. For example the employer is required to have tangible evidence such as the equal opportunity policy. A mere show of the policy does not go well and so the employer needs to ensure that he implements training in equal opportunities across the workforce. If an employer is to be held responsible the wrong committed have to be within the course of employment. This does not take into account whether the wrongs were under any authorization or not. The employer can only be lucky if he/she is able to prove that the employee acted on his own capacity failure to do that he will be held responsible. There is no way that the employer will avoid the liability by just giving evidence that the employee wrongdoing were intended and so unauthorized. Hence, the important feature in establishing vicarious liability is to connect with the “course of employment.” In addition, the incidental ways also plays a huge role for it leaves no room for the employer to avoid liability if the wrongs occur while the employee was conducting the duties he was assigned to. Therefore, to establish whether vicarious liability exists, it is important to ask if the action that is in question was committed during the course of employment a well as if the act is sensibly “incidental” to the employees employment duties. If a connection arises, it is therefore immaterial whether the employees act was unauthorized. In addition, liability can be inflicted upon an employer if some acts of violence are committed by the employees. An example the gatekeeper of a certain company acted in a violent way and made his employer to be held vicariously responsible. By applying the rationale of Lister the court ruled that “wide” approach was requisite in assessing whether an individual’s acts were adequately linked with the duties of his employment so as to justify imposing vicarious liability. Fourthly, the English tort law imposes a very strict liability on employers for the employees’ wrongdoing. Basically the employer is held liable for any tort that is committed by the employer while on the line of duty. Such actions like the sexual assault and deceit are inclusive in the tort law which means that the intentional wrongdoings are now included in the course of ordinary employment. And so an action closely connected to the employees duty makes the employers vicariously liable. Several justifications has been made; for instance the policy reasons need to create a room for the ones who suffer under certain conditions to be compensated. The employers are known to have bigger assets and various and distinct means for offsetting losses.in addition, if a tort occurs while the employee is acting under the instruction of the employer is termed as gaining from the duties conducted by the employee and so they should be held liable for the consequences of the wrong deeds or omissions conducted by these employees. Moreover, it is seen as the means of reducing risks taken by employers thus ensuring adequate precautions while conducting business. Under the protection from harassment act 19971, employer can be charged as guilty if employees are somehow tasked with statutory duties. In addition, if the employee harasses another employee or a person might transfer the charge to employer also, according to the discrimination legislation put forward by the UK government. The employer might evade the charge if he can prove that his organization has a proper structure in place that prevents employees from harassing others. This includes having proper organizational legislations and scope for training on maintaining workplace diversity and cultural values (Elogru, 2008). To illustrate on this the general rule in tort law is that a person authorizing a tort will be held responsible for the damage or the harm. Nonetheless it is found that in vicarious liability other circumstances are given on how a person can be liable of tort even without him expressing authorization. One of these liabilities is when the employer is held responsible for the torts of his employee especially if committed in the course of employment. Whether the injured party is a stranger or an employee does not count and so either way the employer can be held vicariously liable. The most significant element in the establishment of a case for vicarious liability is that the offender be acting as a servant or employee, and that the wrong done be associated to the employees course of employment. Vicarious liability can only be obligatory if it there is a prove that the employee was acted in the course of employment. The criterion is vital, and requires a clear relationship between the service responsibility and the actions committed by the employee. In establishing the vicarious liability, there is a, need to proof that the employee got his employment under a contract of service. If he was an independent contractor a contract of services should be shown. The English law manifests that the employer is also vicariously liable if the employee has a breach of the statutory duty. This includes whether he bullies or harasses in the work premises or even harassed or bullied within the environment of work. To conclude vicarious liability is compulsory on an employer, but in some cases both the employee and employer will be held equally liable. Civil Liability (Contribution) Act implemented in1978 enables the employer to lay claims but in the case of the services offered by the independent contract the employer will still be held liable whether he authorized or not. Vicarious liabilities, for decades, were judged based on the ground whether the activities were part of a regular duty of the employees or a pure invention, a frolic by employees themselves2. But based on different case studies UK court moderated the rules and came to conclusion that the employer might be held responsible for the unauthorized acts of the employees that resulted in damage, provided the employees were engaged in authorized acts that were attributed to him by the employer. The basic argument is that in this case the unauthorized activities are considered as the mode of authorized activities. In conclusion, the vicarious liability will still perpetuate provided the actions of the employee falls within the course of employment. Under that note many employers who have little awareness that they can be liable for a range of actions or omissions which are committed by their employees especially in the course of their employment will continue to suffer greatly. These actions comprises of violent, bullying, discriminatory act, breach of copyright, being liberal and bullying among others. In addition, it is possible that the actions can be taken against the employer for the behaviors of even the third party the like of the clients and customers if they are controlled by the employer. However other lawyers expand the approaches taken by the courts to determine the circumstances for how the vicarious liability is applied. This in itself has widened the amount of the “in the course of employment” criterion. Despites its essentiality the criterion has prolonged even to the point of giving a room for claims of vicarious liability in cases where liability would not have debatably been imposed. The additional room of the liability to statutory duties merely highlights this point. the Lister v Hesley Hall Ltd3 brought a revolutionary change within the UK vicarious act regulations where the employers of warden, who systematically abused boys sexually, were charged for vicarious liabilities. Previously, the act was quite different as sexual abuse by teachers was considered “far removed from being an unauthorized mode of carrying out duties on behalf of his employers.” This conclusion by the court directly challenged the validity of previous argument. But the central theme of the argument is still the “course of employment,” but the court added another dimension by running the close connection that did not require the activities to be authorized by the employer, whether expressly or impliedly. In turn, the extension of vicarious liability will have comprehensive implication for employers as time goes by. However, Vicarious liability has a great meaning especially for the employees/ and the employers and it refers to a situation of being held responsible for the actions or omissions of another person. For instance, in the context of work the employer is liable for the actions or omissions of the employees but only if this is done and proved that it took place in the course of their employment. References Bar, C. ., Drobnig, U., Alpa, G., & European Commission. (2004). The interaction of contract law and tort and property law in Europe: A comparative study. München: Sellier. Busnelli, F. D., & Spier, J. (2003). Unification of tort law: Liability for damage caused by others. The Hague [u.a.: Kluwer Law Intern. Cassidy, J. (2006). Concise corporations law. Annandale, N.S.W: Federation Press Eroglu, M. (2008). Multinational enterprises and tort liabilities: An interdisciplinary and comparative examination. Cheltenham, UK: Edward Elgar. Faure, M. (2009). Tort law and economics. Cheltenham, UK: Edward Elgar. Social responsibility in labour relations: European and comparative perspectives. (2008). Alphen aan den Rijn: Kluwer Law International. Tully, S. (2005). Research handbook on corporate legal responsiblity. Cheltenham [u.a.: Elgar. Read More