Labour & European Law Review Weekly Issue 260 15 March 2012
It is well established in law that employers can be vicariously liable for the acts of their employees, if they were carried out in the course of their employment. In the conjoined cases of Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd, the Court of Appeal said that employers can be held liable for the violent reaction of an employee to a reasonable instruction from another employee.
Mr Weddall, the deputy manager at a care home, rang an employee at home about six o’clock to ask if he could cover that evening for a sick colleague. Mr Marsh, who was already drunk, refused and became angry because he thought Mr Weddall was mocking him because he was drunk.
He then rang back saying he was going to resign and about 20 minutes later, turned up at the home. Without saying very much, he assaulted Mr Weddall. He subsequently pleaded guilty to the assault and was sentenced to 15 months in prison.
Mr Wallbank was the managing director of a small manufacturing company making beds. He pointed out to an employee, Mr Brown, that he was not loading enough frames into the oven at a time, thereby wasting fuel. He then indicated to Mr Brown that he was going to help him. Mr Brown joined him at one end of the oven, at which point he threw Mr Wallbank onto a table causing a fracture of a vetebra in his lower back.
Both Mr Weddall and Mr Wallbank brought claims for personal injury against their employer, on the basis that they were vicariously liable.
The county court judges in each case held that the employee had not been acting in the course of their employment, because there was not a sufficient connection between the assault and the work they were employed to do. Accordingly, they found that the employer was not liable for their actions. The two men appealed, arguing that as employees receive instructions and respond to them, an inappropriate form of response - even a violent one - was an act within the course of their employment.
Court of Appeal decision
The Court of Appeal said that the answer depended on how closely the employee’s acts could be said to be connected to the work they were employed to do, in terms of place, time and space. The critical factor was the closeness of the connection between the employment and the unlawful act.
In Weddall, it held that Mr Marsh was engaged in “an independent venture of his own” which was quite separate from his employment as a senior health assistant at a care home. Mr Weddall’s request was no more than a pretext for an act of violence by Mr Marsh, unconnected with his work and the employer could not, therefore, be held vicariously liable.
In Wallbank, however, it held that Mr Brown’s reaction was irrational and “unjustified by the lawful instruction given”. Not only was the violence closely related to his employment in both time and space, it was a spontaneous and almost instantaneous (albeit irrational) response to an instruction.
The Court commented that the possibility of friction was inherent in any employment relationship, but particularly so in small workplaces where frustrations leading to a violent reaction might result from the need for instant instructions and a quick reaction. The Court therefore decided that, in Mr Wallbank’s case, the employer was vicariously liability for the violent way in which Mr Brown reacted to the instruction given to him.
It added that it would be going too far to accept that an employee who reacted violently towards another employee giving them an instruction was always acting within the course of their employment. But equally it would not be fair to deprive an employee of a remedy where they had been assaulted because of an instruction they had given.
This case provides a useful summary of the case law on an employer’s vicarious responsibility for workplace assaults by one employee on another. As the Court of Appeal in these cases explained, the nature of the employment and the question of what is reasonably incidental to the employee’s duties, is key to assessing whether the employer should be accountable for the actions of their employees. It is clear from these cases that a violent reaction to a reasonable instruction is something for which an employer can be held vicariously liable.