In the recent cases of Weddall v Barchester Healthcare Limited and Wallbank v Wallbank Fox Designs Limited, the Court of Appeal had to consider whether two employers were vicariously liable for assaults which happened at the workplace.
Mr Weddall worked in a care home. When another care worker failed to turn up for his shift, he phoned his colleague, Mr Marsh, and asked if he could cover the shift. Mr Marsh was drunk and, within 20 minutes of receiving the call, Mr Marsh turned up at the care home and assaulted Mr Weddall. The Court of Appeal concluded that Mr Weddall’s employer was not vicariously liable for Mr Marsh’s actions.
Mr Wallbank worked in a small factory and instructed Mr Brown to help him load an oven. Mr Brown reacted to this by putting a hand on Mr Wallbank’s face and pushing him onto a table about 12 feet away, causing him injury. The Court of Appeal held that Mr Wallbank’s employer was vicariously liable for Mr Brown’s actions.
For an employer to be vicariously liable for the wrongdoing of an employee, case law has long established that the wrongdoing must be committed in the course of the employee’s employment. The Court of Appeal reviewed previous cases in which the courts had given guidance on when an act should be deemed to have been carried out in the course of employment, but concluded that there was no definitive test and each case depended on its own facts.
The Court of Appeal concluded that Mr Marsh’s assault on Mr Weddall was “an independent venture of his own, which was separate and distinct from his employment at the care home” and that the request that he volunteer to cover the shift was “no more than a pretext for an act of violence which was unconnected with his work”. As a result, the employer was not vicariously liable for Mr Marsh’s actions. In contrast, Mr Brown’s assault on Mr Wallbank was found to be an immediate response to instructions which were given to him by a senior employee and the Court of Appeal concluded that the assault was, therefore, carried out in the course of Mr Brown’s employment and his employer should be held vicariously liable for his actions.
Impact for employers
- This case confirms that employers can be found vicariously liable for the violent acts of their employees towards their colleagues.
- However, not every act of violence inflicted on one employee by another will result in the employer being found liable. Liability will only fall on the employer if it can be demonstrated that the violent act was carried out in the course of the employee’s employment.
- Whilst there have been a number of cases which consider what is meant by an act carried out “in the course of employment,” the case confirms that each case will be determined on its own facts.