UK: COVID-19 Healthcare: Vicarious Liability In Employer Liability Claims

A two-stage test for vicarious liability

The test in vicarious liability cases is two-stage:

1. Is the relevant relationship one of employment or "akin to employment"?
2. Was the tort sufficiently closely connected with that employment or quasi employment?

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.

Impact of COVID-19 on vicarious liability claims

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:

• Employees who are symptomatic, or aware they are infected, who continue to go to work in direct contravention of Government guidelines and who, whilst carrying out their job, consequently infect colleagues, customers, suppliers or contractors.
• Employees negligently undertaking work they are not trained to do, or operating machinery or plant they are not qualified to, due to staff shortages caused by social distancing or self-quarantine measures, causing loss or damage to others.
• Employees who cause loss or damage as a result of being overworked or fatigued due to staff shortages caused by social distancing or self-quarantine measures.
• Employees undertaking work from home who cause loss or damage due to distractions not usually present in the workplace, for example due to consuming alcohol or drugs.
• Employees undertaking work from home who cause loss or damage by failing to lock their computer, and a member of their household accesses, uses or sends information inappropriately.
• Volunteers who are undertaking unpaid work for the NHS or charities, and who are deemed to be akin to employees, committing tortious acts.

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.

Future outlook

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.