Vicarious Liability can be a scary concept for employers as it means that you can be liable and held responsible for the actions or omissions of one of your employees when they take place in a workplace context (and beyond).
This could relate to a number of different scenarios including bullying and harassment, violent behaviour, discrimination, copyright breaches and many more. Let’s look at an example:
If you suspect someone is at work under the influence of alcohol, you have a duty of care to manage that situation. That could include getting them help for addiction if appropriate, firstly, however, you have to manage the immediate problem of them being at work whilst drunk which is a health and safety risk. It would be normal practice in this scenario to send them home, normally under suspension, pending an investigation.
Let’s assume that they have driven to work, in their own car and following their suspension intend to drive themselves home. If you allow that to happen and there was an accident, you have knowingly sent someone onto the roads to drink drive. The other side, however, is that they are driving their own vehicle, it would not be appropriate to take away their keys or physically stop them so all you can do is ask them not to drive and offer to find alternative means to get them home. Most people will accept this offer however if they don’t and do leave then you have to take appropriate action, which in this case could be informing the police. In this scenario, you have done everything within your power to prevent an accident and someone committing a crime.
So how can you prevent vicarious liability, ultimately it comes down to how robust your policies are, whether they are shared and understood and how clearly you document things. In many situations that could have vicarious liability the burden of proof lies with you (i.e. you have to prove you did or didn’t do something as an employer). We handle the first point and ensure your policies are tip top BUT the second and third points lie with you (with our support). Here are our tips of what you can do (and how we can help you):
- Ensure you have an up to date, robust set of policies and procedures (we automatically provide this and updates for our clients).
- Ensure that document (s) are accessible and people know where to find it, so they can refer to it whenever they want to. That could be a shared drive or system. If you rely on printed copies regularly check they are still in place and they are the correct version.
- Communicate changes, ensure staff read the policies. Its common for employers to ask individuals to read and sign to say they have but have they understood? This should be the minimum and for some changes ensure your managers run communication sessions with the team to ensure they understand the policy and what it means (we can help you create something).
- Ensure your managers have the training to be able to deliver sessions like this, the first step is ensuring they really understand the policy. We run Equality and Diversity training and Management Skills training for alot of our clients to ensure managers are equipped to handle this but also to help prevent problems that can arise through mismanagement. Ultimately if something ends up in court a judge may look at whether anything could have been done to prevent the situation, training is a key component to this.
- Ensure employees have communication routes, that they can feedback problems and help you manage potential problems before they escalate.
- Take the time to do things properly, yes you may be busy but if something needs addressing do it now. Ensure that records are kept such as file notes, return to works, performance reviews and that they are completed well (again we can train managers on this).
If you have any questions or would like to discuss how we can help you further please contact us on 10325 288299 (option 2)