Liability for an Employees Assaults - Case Study Example

Introduction In general employers are vicariously liable for the torts of their employees provided the tort is committed in the of employment. Employers are not usually liable for damages in respect of the criminal conduct of their employees, unless an employee performs his duties in a criminal manner. Tom Barnes' conduct appears to amount to both tortuous and criminal infractions. On the facts of the case for discussion AFS is not liable to pay compensation to Margaret Simpson but they may be liable to the fellow employee for damages in respect of injuries sustained in an altercation with Tom Barnes. The discussion that follows explains why. Vicarious Liability Vicarious liability is a legal concept assigning responsibility to an employer for the negligence or prohibited conduct of an employee acting in the course of his duties at work. If the conduct is in no way connected to the employment the employer will not be held liable. There are several reasons for the doctrine of vicarious liability and Michael A. Jones offers perhaps the best synopsis. Jones explains that vicarious liability can be justified on the following grounds: "(1) The master has the 'deepest pockets'. The wealth of a defendant, or the fact that he has access to resources via insurance, has in some cases had an unconscious influence on the development of legal principles. (2) Vicarious liability encourages accident prevention by giving an employer a financial interest in encouraging his employees to take care for the safety of others. (3) As the employer makes a profit from the activities of his employees, he should also bear any losses that those activities cause."1 The courts have established and developed a three tier test in order to determine whether or not the tortfeasor is an employee and his employer is vicariously liable for the conduct of his or her employee. The three tier tests are: "the control test"2, "the integral test"3and "the multiple test."4 The control test is satisfied if the employee is under the control of the employer. For instance if the employer can terminate the employee for failing to carry out the employer's instructions, the employee is under the control of the employer. If the employee is compensated for the work done he is likely to be considered an employee and if the employer is at liberty to hire the employee and to terminate his services he will in all likelihood be deemed an employee within the context of the control test.5 Margaret Simpson should have no difficulty establishing the control test for the purpose of having Tom deemed an employee of AFS. He himself stated that he was "only doing his job." Moreover in attempting to justify his conduct he stated that he was responding to comments about his poor performance made by his manager Sarah Harper. This statement is a manifestation of the control Tom's employers had over the manner in which he performed his duties. There were also previous talks about job losses and performance targets which would suggest that Tom was an employee under the control of AFS. By virtue of the integral test, if the employee forms an integral part of the business and is not merely incidental to the business then he will be deemed an employee.6 Tom Barnes is employed at AFS' headquarters in the position of product sales executive. AFS as a financial services business and selling its products can not in any way be viewed as merely incidental to the success of the business. Therefore it is fair to assume that Tom Barnes, a product sales executive is an integral part of the business. The multiple test is an amalgamation of the control and integral tests. In Ready Mix Concrete (South East) Ltd v Minister of Pensions (1968) 2 QB 497 it was held that the multiple test is satisfied and an employee is said to be under a contract of service if he is paid for his services, is under the control either expressly or implicitly of his employer and if there are other terms and conditions reflective with an employment contract.7 On the facts of the case for discussion it is abundantly clear that Tom Barnes is employed by AFS. Be that as it may, vicarious liability is not automatic. It will have to be established that Barnes was acting in the course of his employment at the time of both incidents and was not merely off on a frolic of his own. Moreover, it will also have to be established that the conduct resulting in the injuries in both cases was such that AFS should be vicariously liable. As will be borne out, improper conduct is not automatically outside of the scope of employment. Margaret Simpson's Claim Tom's hard sell was obviously conduct that was not outside the scope of his employment, although it can be argued that it was not authorized by his employer. The authorities however, clearly state that the improper mode of conducting one's duties do not provide an escape mechanism for an employer. For instance in Rose v Plenty [1976] 1 All ER 97 a milkman carried a teen-aged boy on his milk rounds for the purpose of assisting him with his delivery. This conduct was expressly forbidden by the milkman's employers. It was held however, that the milkman was acting in the course of his employment although he was clearly acting in an unauthorized manner and the employer was vicariously liable for injuries sustained by the boy in an accident on the milk route.8 The act of throwing the paperweight at Margaret Simpson is clearly not connected to the manner in which Tom Barnes was carrying out his duties as a sales executive. This conduct amounts to a physical assault, conduct which the courts in the UK are not likely to hold AFS vicariously liable for. F.D. Rose noted that: "Courts within the British Commonwealth have demonstrated a persistent reluctance to hold that an employee's assault has been committed within the course of his employment so as to make his employer vicariously liable for the tort." 9 The courts have since found that there are certain circumstances in which an employer will be vicariously liable for the assault of an employee on another. However, those cases are limited to circumstances in which the employee's job description is one where he might be expected to use violence in the course of his work. In Lister v Hesley Hall Ltd [2002] 1 AC 215 Lord Steyn said: "If such [non-sexual] assaults arise directly out of circumstances connected with the employment, vicarious liability may arise'the relative closeness of the connection between the nature of the employment and the particular tort".10 This finding is predicated on the theory that an employer can only be responsible for conduct that is closely connected to manner in which the employee is expected to carry out his functions on the job. Lord Thankerton remarked in Canadian Pacific Railway Co -v- Lockhart [1942] AC 591: "the criterion is whether the act which is unauthorised is so connected with acts which have been authorised that it may be regarded as a mode - although an improper mode - of doing the authorised act, as distinct from constituting an independent act for which the master would not be liable."11 On the facts for discussion, Tom Barnes' act of throwing a paperweight at a customer to whom he was attempting to sell AFS products was an independent act. The hard sell took on a personal and private complexion and was in no way related to the manner in which Tom was expected to function as a sales' executive. In the High Court of Australia a similar scenario played out in Deatons Pty Ltd v Flew (1949) 79 CLR 370. In Deatons Pty Ltd v Flew (1949) 79 CLR 370 a barmaid while working the bar threw a glass at a customer hitting the customer in the face. It was held that the act of throwing the glass at the customer was not expressly authorized by the employer and was in no way connected to any act that the barmaid was authorized to do. It was therefore an independent act, one borne out of resentment as well as passion. The High Court of Australia went on to say: "'an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid"12 A similar situation arose in Warren v Henlys Ltd [1948] 2 All ER 935. In this case an attendant at a garage assaulted a customer. When the customer attempted to drive off without paying the attendant's abusive conduct resulted in the customer paying. After paying the customer then telephoned the police and threatened to report the incident to the attendant's employer, the attendant then assaulted the customer. The customer sued and the employers were held not vicariously liable. The act was one of personal revenge and was outside the actual job description of the attendant.13 At the end of the day relevant question for consideration is a determination of whether or not the employee was authorized to conduct himself in a manner similar to the conduct complained of.14 This question was considered in some detail in the case of Mattis v Pollock [2003] IRLR 603. In the Mattis case a doorman at a nightclub became embroiled in an argument with a customer who was subsequently chased away by a group of about four or five persons. Approximately 100 yards away from the club, the group was gathered around the man Mr. Mattic and the doorman (Cranston) left and returned with a knife which he used to stab Mr. Mattis. The Court of Appeal held that the employer (Mr. Pollock) was vicariously liable and explained how liability arose in the following terms: "Cranston was indeed employed by Mr Pollock to keep order and discipline at the nightclub. That is what bouncers are employed to do. Moreover, however, he was encouraged and expected to perform his duties in an aggressive and intimidatory manner, which included physical man-handling of customers'."15 It might be possible to argue that the talk about job loss, restructuring and sale's targeting justified Tom Barnes' hard sell which ultimately resulted in his attack on Margaret Simpson. It might be argued that as a result Barnes was "encouraged and expected to perform his duties in an aggressive and intimadatory manner."16 However, such an argument is unlikely to succeed on the grounds that Tom Barnes' job as a sales executive at the company's head quarters did not involve any use of physical contact and could not in no way include the use of physical coercion as would be expected of a nightclub doorman. Therefore in light of the authorities discussed, AFS is not vicariously liable for Margaret Simpson's injuries since Tom Barnes, although employed by AFS and acting in the course of his employment committed an entirely independent act borne out of personal resentment and passion. The Fellow Employee The law governing the vicarious liability of employers in respect of malfeasance committed between employees is essentially the same as general principles of employer's liability. By the same principle an employer can be held liable for the misconduct of one employee to another provided the misconduct occurs at work and is closely connected to the job that the employee is hired to perform. Although Barnes and his co-worker were attending a social gathering the event was nevertheless a part of both employees' jobs since it was an extension of their required duties. In Chief Constable of the Lincolnshire Police v Stubbs, 1999, IRLR 81 employees attending a pub party organized by the employers. As a result the social gathering was considered an extension of the work place.17 The meeting in Barnes case involved his employees and employers and was set entirely for work related reasons. Therefore the assault took place within the scope of employment. The conduct of the employees appears to be one of harassment within the meaning of the Protection From Harassment Act 1997. Section 3(2) of the 1997 Act provides for complainants to be compensated for harassment while at work. Section 3(2) provides for compensatory damages to victims of harassment in the workplace: "(among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment".18 The common law principles requiring that the wrongful act by an employee was committed while conducting an authorized mode of work is departed from in cases of harassment falling under the Protection From Harassment Act 1997. By virtue of the 1997 Act 'a separate species of vicarious liability' exist. 19 Lord Hobhouse explained how vicarious liability arises in cases of harassment within the workplace. When an employee commits an act which is authorized by the employer the employer is vicariously liable for any ensuing damages.20 The employers are assumed to have been present at the meeting and on all accounts do not have appeared to have made an effort to quell or control the conduct of the other employees that led to the altercation between Tom Barnes and the co-worker. This is tantamount to actual authorization. Moreover, Lord Nicholls held that harassment by one employee against another will incur vicarious liability on the part of the employer under the provisions of the Protection From Harassment Act 1997.21 The case of Hudson v Ridge Manufacturing is also important to Crispin's case. In this case an employer was found to be negligent for the harm suffered by one employee as a result of the practical jokes of another employee.22 In all the circumstances, AFS will be vicariously liable for the damages suffered by the co-worker. Under the Civil Liability (Contributions) Act 1978 both Tom and AFS can share responsibility for the co-worker's injuries. Section 1(1) provides as follows: "'any person liable in respect of any damage suffered by another person may recover a contribution from any other person liable in respect of the same damage".23 Conclusion For the reasons discussed above, Margaret Simpson's claim for compensation will not likely be sustained against AFS on the basis of vicarious liability. While the injuries incurred at Barnes' work place during his work hours he was not acting in a manner consistent with or closely connected to the mode of his employment functions. His conduct was personal and outside the scope of his employment. The co-worker's injuries were sustained at the workplace and were a result of conduct that could have been controlled by his employers and they would therefore be vicariously liable for the damages. Works Cited Canadian Pacific Railway Co -v- Lockhart [1942] AC 591 Cassidy v Minister for Health (1951) 2 KB 343 Chief Constable of the Lincolnshire Police v Stubbs, 1999, IRLR 81 Civil Liability (Contributions) Act 1978 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Hudson v Ridge Manufacturing [1957] 2 All ER 229 Jones, Michael, A. (2000) Textbook on Torts. Oxford: Oxford University Press. Lister v Hesley Hall Ltd [2002] 1 AC 215 Mattis v Pollock [2003] IRLR 603 Majrowski v. Guy's and St. Thomas' NHS Trust [2006] UKHL 34 Navarro -v- Moregrand Ltd [1951] 2 TLR 674 Protection From Harassment Act 1997 Ready Mix Concrete (South East) Ltd v Minister of Pensions (1968) 2 QB 497 Rose, F.D. (1977) "Liability for an Employee's Assaults." 40 MLR 420 Rose v Plenty [1976] 1 All ER 97 Sinclair, Adele. Harassment, Discrimination in Interpretation. 1 WebJCL1 1998 http://www.neiladdison.pwp.blueyonder.co.uk/work.htm Viewed July 26, 2007 Stevenson, Jordan and Harrison v M&E (1952) 1 TLR 101 Yewens v Noakes (1880) 6 QBD 530 Read More