The Court of Appeal recently heard two conjoined appeals Weddel v Barchester Healthcare Ltd; and Wallbank v Wallbank Fox Designs Ltd relating to employees assaulting other members of staff, and had to determine whether their employers were to be held vicariously liable for the events.
In the first case, a deputy manager of the care home was on duty when a member of the night staff rang in sick and the manager contacted his senior health care assistant Mr Weddel to ascertain if he could work the night shift. He declined, but was drunk and formed the opinion that his manager was mocking him. Soon afterwards, Mr Weddel cycled to his manager's home and assaulted him.
In the second case, Mr Wallbank was employed as a powder coater, whose job it was to spray metal frames and load them onto a conveyer belt through an oven. His manager noticed that he had not fed frames into the oven regularly and raised it with him. Mr Wallbank then threw his manager onto the table, fracturing his lower back.
The two assaulted managers brought claims against their employers alleging that they were liable for their employee’s actions.
In the first case the Court of Appeal upheld the county court’s judgment and confirmed that Mr Weddel’s violent reaction to the request was an independent venture, separate and distinct from his employment at the care home, which merely happened to occur at his place of work.
In the second case, the court looked at whether there was a sufficient connection to what Mr Wallbank was required to do and the unlawful violence - it was considered that the violence was closely related to his employment, and was a spontaneous response to a lawful instruction. Consequently, the Court of Appeal held that the company was vicariously liable for Mr Wallbank’s actions.
These cases highlight that the Courts are reluctant to establish a strict test for vicarious liability. Each case will therefore be looked at on its own merits. There are however preventative steps employers should take to protect themselves.
Employers should ensure that adequate training and support is in place for management to allow them to deal with staff in a fair and consistent manner. Training should be given to line managers on dealing with difficult individuals and a detailed disciplinary policy should identify examples, and penalties, for physical and/or verbal assault of one’s colleagues. Where an individual is identified as posing a higher risk of retaliating against their manager’s instruction, the employee should be forewarned and disciplined before more minor matters escalate.
Vicarious liability extends to other liabilities within the workplace. By example, employers can be found liable for the discriminatory acts of their employees. The Tribunals will explore whether the employers have implemented a robust equal opportunities policy and have provided their staff with meaningful anti-discrimination training, which has been monitored and refreshed at frequent intervals.