Vicarious Liability

Whilst the person who actually commits the tortious act is always liable, in certain circumstances another person may also be liable even though he has not actually been involved in the tortious act. In this case, the parties are liable as joint tortfeasors. An employer is vicariously liable for the tortious acts of employees within the scope of their employment whereas he is only liable in exceptional circumstances for the torts of an independent contractor. Under the Employers' Liability (Compulsory Insurance) Act 1969, an employer must insure himself against such vicarious liability.

The employer's liability is limited to the employee's acts within the scope of his employment.

In Warren v. Henleys [1948], the employer was not liable where a pump attendant at a petrol station punched a client, but in Lloyd v. Grace, Smith & Co. [1912], a firm of solicitors were liable for their managing clerk's fraud since he had acted in the course of his employment. Further, in Williams v. Curzon Syndicate Ltd(1919), the employers of a night porter with a criminal record who stole the plaintiffs jewellery from a safe in the manager's office were liable for not exercising due care in engaging the porter. And in Pettersson v. Royal Oak Hotel Ltd [1948], the employers of a barman were liable when, after a beer glass had been thrown at him by a drunken customer, he threw a piece of the broken glass back, injuring another customer in the process.

In Hudson v. Ridge Manufacturing Co. Ltd [1957], the employers were vicariously liable for injury caused by an employee tripping up another as a practical joke, since the man in question had a known reputation as a practical joker and the company had not dismissed him. In Century Insurance Co. Ltd v. Northern Ireland Road Transport Board [1942], the employers of a driver of a petrol tanker were vicariously liable for the damage caused when the driver lit a cigarette and threw away the match while discharging petrol into the garage reservoir.

Continuity of Employment

The common law provisions relating to employees apply to all employees but statutory protection under the Employment Protection (Consolidation) Act (EPCA) 1978 only applies to employees who could establish a qualifying period of continuous employment. These were originally defined according to: (i) a number of qualifying weeks, and (ii) the weeks counted only where 16 hours were worked.

In R v. Secretary of State for Employment ex parte EOC and Mrs P. Day [1994] the House of Lords upheld a case brought by the Equal Opportunities Commission (EOC) that the provisions of the EPCA 1978 on redundancy and unfair dismissal were discriminatory and contrary to European Community Law as regards part-time workers working less than 16 hours per week. Consequently, the Employment Protection (Part-Time Employees) Regulations 1995 removed the discriminatory provisions and from 6 February 1995 employees, regardless of hours worked, may be entitled to redundancy payment and/or compensation for unfair dismissal provided they have been continuously employed for a minimum of two years.

On 31 July 1995 in Seymour-Smith and Perez v. Secretary of State for Employment, the Court of Appeal decided that the two years' qualifying period for access to unfair dismissal was contrary to the Equal Treatment Directive because it was indirectly discriminatory against women.