It is a long-established principle that an employer will not be vicariously liable for the act of an employee unless the act was committed in the course of employment.
However, the meaning of ‘in the course of employment’ has been the subject of much debate.
In the joined cases of Weddall v Barchester Healthcare Limited and Wallbank v Wallbank Fox Designs Limited, the Court of Appeal considered whether two employees acted in the course of their employment when, in each case, they inflicted severe violence on a colleague.
In the first case, Mr Weddall telephoned Mr Marsh at home to ask if he would like to fill in a shift at a care home for someone who had called in sick. Mr Marsh was drunk at the time and did not react well to the request, even though he was free to refuse to do the shift. He rode on his bicycle to the care home, saw Mr Weddall in the garden and subjected him to a violent physical attack. In the second case, Mr Wallbank asked a more junior colleague, Mr Brown, to assist him in loading furniture onto a belt. Mr Brown reacted to this request by throwing Mr Wallbank onto a table 12 feet away, as a result of which he suffered a fractured vertebra. A County Court judge had found that neither employee was acting in the course of employment, and that accordingly the employer was not vicariously liable for these assaults.
The victims argued that since employees must receive instructions and respond to them, any form of response, even a violent one, is an act within the course of employment. The Court of Appeal agreed that the assault on Mr Wallbank was so closely connected in time, place and causation to the instructions given to Mr Brown as part of his employment that his employer was liable for the assault. However, it held that Mr Marsh was not acting in the course of employment when he assaulted Mr Weddall because, despite taking place at his workplace, the assault was otherwise unconnected to his work as a health assistant. It was described as ‘the spontaneous criminal act of a drunken man who was off duty’.
This decision illustrates the difficulties involved in assessing which acts of employees are ‘in the course of employment’, but provides useful guidance on the factors a court will consider in vicarious liability cases.