EMPLOYERS are responsible for their employees’ safety at work, for providing certain benefits, and for paying their employees on time and in full for work done, among other things. These are the obvious obligations which employers will always have in mind. However, often forgotten or unknown is that an employer may also be liable for the negligence (mistakes) of their employees, provided that they were acting within the scope of their duties.

The law recognises the special relationship between an employer and his employee, including the level of control that the employer has over how an employee executes his duties. This extends to the fact that it is the employer who hires, trains, supervises their employee and places them in a job where they could harm a third party if they are negligent. To determine this liability, the court will typically assess (1) whether the individual is an employee or an independent contractor, (2) whether the person was acting in the course of their employment or were on a frolic of their own, and (3) having regard to the specific facts of the case, whether it is fair and just to impose liability on the employer.

This does not mean that the employee escapes liability. An employee may still be personally liable for his or her actions, but the employer may also be held vicariously liable for the same wrongdoing.

Employee vs Independent Contractor

In assessing whether the person is an employee or independent contractor the court will have regard to a range of factors, including the level of control that the company has over the individual. Although not always determinative, a court is likely to conclude that the individual is an employee if the company sets his working hours, provides the materials necessary for him to carry out his duties, supervises and trains him. In that case, the individual is providing a contract of services.

Generally, a company or individual is not responsible for the actions of an independent contractor. An independent contractor is one who is hired to carry out a contract for services in which they provide their own material, personnel, have developed their own training protocols, and the company or individual hiring their services exercises little to no control over them.

Take for example, Company A hires Company B to provide janitorial services for all of Company A’s locations. Under the contract, Company B hires, trains, and pays the staff and selects who works at Company A’s various locations, while Company A pays Company B and allows access to its buildings. If one of Company B’s employees were to cause injury to someone at one of Company A’s locations, it is unlikely that the court would find Company A vicariously liable for the actions of Company B’s employee, since Company B is operating as an independent contractor to Company A.

In the Course of their Employment vs Frolic of their Own

If the court finds that the person is an employee, it will next consider whether the act which led to the injury was committed in the course of employment. This assessment is typically done by reviewing the individual’s job function and the circumstances in which the act occurred. Therefore, if a delivery driver, through his negligence, injures a pedestrian, the employer may be liable since he was employed to operate and drive the vehicle, and the injury happened as a result of his driving said vehicle.

An employer may also be liable where the employee is carrying out an authorised activity in an unauthorised way. This means that the employer may still be liable if his employee, while executing his duties, does something which is expressly prohibited, provided that the act was sufficiently connected to the work the employee was employed to do and was committed in the course of his employment.

In contrast, a potential defence to a claim of vicarious liability is that the employee was on a frolic of his own, i.e. he was not engaged in any business of his employer at the time of his tortious act. In our earlier example, if the delivery driver, although using the company’s vehicle, was at the time using it to do his personal business outside of work hours and against the express instructions of the employer, the employer may not be liable.

Fair and Just to Make the Employer Liable

Underlying vicarious liability is the policy consideration that, where an employer places an employee in a position to carry out the employer’s business and in doing so creates a risk of harm to others, it may be fair and just for the employer (who has created that risk and is typically better resourced) to bear responsibility for the consequences of the employee’s actions.

Practical Considerations

Given the employer’s potential exposure to liability, it is important for employers to:

• Properly vet the people they hire to work for them;

• Develop and implement rigorous employee training manuals;

• Provide effective supervision of all employees, including appropriate reminders of the need to carefully execute their duties; and

• Consider employer indemnity insurance to cover any potential claims.

Conclusion

Employers should make prudent hiring decisions, exercise proper supervision, and implement appropriate training to reduce or prevent negligence by employees that may cause injury to members of the public. Otherwise, it may not only be the employee’s mistake, but also the employer’s shared liability.

Ronaldo Richards is an associate at Myers, Fletcher and Gordon and a member of the firm’s Litigation Department. He may be contacted at ronaldo.richards@mfg.com.jm or through the firm’s website www.myersfletcher.com.

This article is for general information purposes only and does not constitute legal
advice.