Vicarious liability - where are we now and what is coming up?

Vicarious liability is a unique creation of the common law and has UK-wide application. It requires an employer or notional employer to pay for the wrongdoing of an employee or someone akin to an employee. In this sense, vicarious liability is an “automatic” liability, although not a “strict” liability in the legal sense because of the need for underlying wrongdoing.

Two criteria must both be met for the doctrine of vicarious liability to apply -

1. the nature of the relationship between the two parties must either be one of employment, or one that is sufficiently similar or “akin” to employment that it justifies treating it the same way. The relationship criterion is not however met when the wrongdoer is truly an “independent contractor” and not subject to a sufficient degree of direction or control by the other person or organisation.
2. there must be a close or sufficient connection between that relationship and the wrongdoing.

These requirements have come under intense and fact-specific scrutiny in senior courts across the UK in recent years and, as this insight shows, they continue to do so. 

Nature of the relationship - an ongoing Scottish case

An ongoing case which has explored the boundaries of relationships “akin to employment” is the Scottish case of X v The Lord Advocate. The case considers the issue of who, if anyone, employs a Scottish sheriff.

The judge at first instance found that The Lord Advocate, a law officer in the Scottish Government and the head of Scotland’s prosecution authority, could be considered the notional employer of Scottish sheriffs for the purposes of vicarious liability. The Inner House of the Court of Session reversed that decision (2024 S.C. 309), finding that although “the Scottish Government may be said to be the ultimate funder of sheriffs’ remuneration, allowances and pension benefits” such that it “might be argued that that tends to support the proposition that judicial officeholders are akin to its employees”, “the lack of control by the Scottish Government and the importance of maintaining judicial independence (both actual and perceived) are cogent factors which weigh heavily against judicial office-holders being akin to employees”, with “these factors … not outweighed by the factors which it is suggested point the other way.” 

In June 2025, the UK Supreme Court heard an appeal against the decision of the Inner House. The Supreme Court’s decision will not be issued until October 2025 at the earliest, when the court is next due to sit. 

The case is worth noting as we may receive further guidance on the circumstances where the relationship requirement is or is not met, such that the decision could influence thinking in other cases with very different factual circumstances.

Connection - recent decisions

In recent years, there was growing concern that the “net” for activity that has a close or sufficient connection to the “employment” relationship to meet the second part of the two-part test was being cast wider than previously.

The high watermark of this widening of the net was perhaps seen in Mohamud v WM Morrison Supermarkets plc [2016] A.C. 677. In Mohamud, vicarious liability attached to the employer for a violent assault in a petrol station forecourt by a kiosk attendant following a tense exchange of words when he was in the kiosk. Interacting with the public was deemed part of the “field of activities” that the employee was entrusted with. The assault, though clearly not something the employee was employed to do and something that the employer would clearly condemn, was an interaction with a member of the public, so vicarious liability attached. 

However, the subsequent decision in WM Morrison Supermarkets plc v Various Claimants [2020] A.C. 989 saw the court reckon with the potential consequences of a wider interpretation of the “close connection” test. In this case, the supermarket’s employee downloaded payroll data of around 100,000 colleagues onto a personal USB drive, uploaded it to a file-sharing website and sent it to newspapers. The employee did so after receiving a verbal warning from his employer for misconduct.  The court found that disclosure of the data online was not within the employee’s “field of activities” given it was not an act he was authorised to do. His wrongful disclosure of the data was not so closely connected with the authorised task of transmitting payroll data to auditors as to fairly and properly regard the disclosure as something the employee did in the ordinary course of his employment. The employee was pursuing a personal vendetta as opposed to being engaged in furthering his employer’s business so vicarious liability did not attach. 

A recent Scottish decision in the Court of Session has also considered the “close connection” test.  The case of C & S v Shaw and anor 2023 S.L.T. 359 considered the test in the context of an action for personal injury damages for non-recent sexual abuse. The pursuers were two brothers who suffered sexual abuse at the hands of the first defender, Shaw, in the mid-1980s.  Shaw had been convicted of abusing both pursuers and did not participate in the action.  The second defender was the operator of a leisure centre in which Shaw had been employed to work as the head caretaker between approximately 1983 and 1987. The abuse took place within the pursuers’ home and within Shaw’s home, which was a caretaker’s house occupied by him within the overall premises of the leisure centre. In considering the close connection test, Lord Brailsford held that there was not a sufficient connection between Shaw’s duties and the abuse so vicarious liability did not attach. Various elements of Shaw’s job description were considered but, principally, the fact that his role did not involve the care or supervision of children at the leisure centre formed the main basis for Lord Brailsford’s reasoning. The decision was appealed to the Inner House, specifically on the “close connection” arguments. On appeal, Lady Dorrian, giving the opinion of the court, upheld the decision of Lord Brailsford, at 2024 S.C. 81.

Conclusion

Although the two criteria for vicarious liability can be succinctly expressed, their application is fact specific and requires detailed consideration and analytical thinking in each individual case. Challenging questions in this field will continue to test lawyers and require determination by the courts in the coming years.