Generally employers will be held responsible for the actions of their employees, where, and provided, those actions are carried out within the course of their employment. This is known as vicarious liability.

We reported on a case, Jelena Vaickuviene and Others v J. Sainsbury plc [2012] CS0H 869 in which the boundaries of this concept and its inter-relationship with harassment under the Protection from Harassment Act 1997 was discussed.

The case concerned the murder of a Sainsbury’s employee by a co-employee during a nightshift. It was argued that such conduct could be characterised as harassment under the 1997 Act and that an employer could be vicariously liable. The murder, it was argued, was "closely connected" with the "employment situation". Sainsbury’s countered that the circumstances were not in fact closely connected with the employee's work duties and as a result the action should be dismissed as irrelevant.

At first instance the Lord Ordinary noted that the circumstances of this case were "unusual and extreme" and she could not conclusively state that the action was "bound to fail". Therefore, the court allowed the case to continue to a full hearing.

Grounds for Appeal and Submissions

Sainsbury’s appealed against that decision and argued that the case should be dismissed as irrelevant due to the employee's specific duties and the fact that the job did not carry a risk of violence or harassment. Instead, when the employee in question committed the fatal assault, he did so on a "purely private venture". The employee's actions could not be regarded as connected to his responsibilities at work and vicarious liability should not attach.

The Decision

The Inner House allowed the appeal and dismissed the action as irrelevant. In order to satisfy the test of close connection there has to be a "strong" connection between what the employer was asking the employee to do (the risk created by the employer's enterprise) and the wrongful act. The employer then must have "significantly increased" the risk of harm by requiring their employee to carry out such tasks. In this case, the court was not prepared to find that employing employees to stack shelves "significantly increased" the risk of them becoming the victims of a fatal assault.

The Court also questioned the appropriateness of seeking to characterise the harmful event in this particular case, the murder, as harassment under the 1997 Act, although such reasoning was not central to its decision.

This is a particularly sensitive and tragic case. However, it does demonstrate that while the limits of vicarious liability are reasonably easy to define, they can be difficult to apply.