BRAIN FOOD: Workplace Rights - Never mind the frolics

To what extent should employers carry the can for the wrongful actions of their staff? The law says this depends on whether employees were acting 'in the course of their employment' at the time. This test used to be generally interpreted in favour of employers. It was relatively easy to persuade a court that an employee had gone off 'on a frolic of his own' so that the company should not be held legally responsible.

by Michael Burd and James Davies, Lewis Silkin solicitors, e-mail: employment@lewissilkin.com

But the balance has shifted, and employers are now more likely to find themselves 'vicariously liable' for staff misbehaviour. In a recent case, a nightclub was successfully sued after a bouncer it employed stabbed someone outside the club. The Court of Appeal said it was fair to make the employer liable because this act of extreme violence was sufficiently closely connected with the bouncer's performance of his duties. So, what can employers do to reduce their exposure?

First, review recruitment procedures, taking measures to avoid employing bad apples who may expose them to expensive liabilities. Second, train staff about the need to avoid careless or malicious behaviour that might result in claims against the company.

And finally, arrange adequate insurance cover.

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