UK & Europe
The issues facing employers as a result of the COVID-19 pandemic are constantly evolving as the national situation changes every day. With this in mind, we consider the potential impact the pandemic may have on the issue of vicarious liability in employer's liability claims.
The test in vicarious liability cases is two-stage:
Both stages of this test have to be satisfied in order for an employer to be held liable for an employee's tortious action, but recent case law has seen the Courts consider an ever expanding range of issues when determining each stage (the law of vicarious liability has previously been described by the judiciary as "on the move").
The first stage was extended by the Supreme Court in Cox v Ministry of Justice in 2016. In that case, it was held that the Ministry of Justice (MOJ) was vicariously liable for the negligence of a prisoner who injured a MOJ employee. The Supreme Court confirmed that there was no need for the defendant to be carrying on activities of a commercial nature in order to be deemed an employer for the purposes of vicarious liability, thus opening up the law to a wide range of circumstances that might satisfy the requirement of "akin to employment". This definition can therefore include volunteers. Very recently however, the Supreme Court has confirmed that this first stage does not affect the legal distinction between an employee and an independent contractor.
As to the second stage, again, the very recent Supreme Court decision in WM Morrison Supermarkets plc v Various Claimants (see our article here) has confirmed that the relationship of employment must be so closely connected with the acts the employee is authorised to do that it can be fairly and properly considered to be in the course of employment. The law does not extend to employees who commit tortious acts in pursuit of a personal vendetta; the mere fact that an employment gives an employee the opportunity to commit such an act is insufficient to impose vicarious liability.
Against this developing backdrop, COVID-19 may well have an effect on the nature of vicarious liability claims we will see in the future, including:
As with all employee liability claims however, the usual elements of the claim must be proven in order to establish liability (i.e. that the defendant owed a duty of care and that there was a breach of that duty and that the breach caused the claimant's loss or damage). In addition, it should also be borne in mind that any tortious claim in these circumstances will face great scrutiny particularly where WHO and individual state governments have struggled to assess and combat the challenges so any more general duty of care being placed upon individual organisations would seem a step too far.
It will likely be difficult, and sometimes impossible, for an infected person to prove that they contracted COVID-19 due to a breach of duty for which an employer is vicariously liable (given the many potential known and unknown sources of infection). Even in more direct scenarios of damage, tracing the precise cause of a person's condition within the context of a pandemic will always have its own peculiarity of challenge for a claimant.
The pandemic is having and will continue to have an unprecedented effect on the workforce, with many "key workers" who are still required to work facing exceptional circumstances. It is essential that employers keep up-to-date with current Government guidelines and ensure that they apply the relevant advice appropriately.
It may also be prudent to remind employees that they also have a duty of care for their own health and safety and that of their colleagues, including following health and safety guidance given by the Government, health authorities and their employer.
Authors: Jason Bleasdale and Alexandra Dearn