Most employers are aware that they tend to be responsible for the actions of an employee taken during the course of his or her employment. Legally termed ‘vicarious liability’, employment lawyers and HR practitioners regularly advise organisations on ways in which to manage the employer’s liability and minimise the onus on the employer when an employee acts inappropriately.
In March 2016, the Supreme Court clarified the law on vicarious liability and sent shivers down the spines of UK employers. In this case, an employee of the petrol station at a Morrisons supermarket seemingly ‘exploded’ at a reasonable customer and physically assaulted him. The Court found that Morrisons was vicariously liable for the employee’s actions.
Many (including the lower courts in this case) considered that the employee’s actions could, in legalese, be considered to be ‘going off on a frolic of his own’. In essence, this means he carried out a personal act (the Court called it an act of ‘personal racism’) rather than carrying out the role that he was asked/expected to do.
However, the Supreme Court noted that the law has developed over recent years – partially due to a 2002 case where a warden at a boarding school sexually abused children in his care. Ultimately, where there is a close connection between the role of the employee and their wrongful acts (albeit when they commit a gross abuse of their position) the employer is likely to be vicariously liable.
What can employers do to limit their vicarious liability?
In an ideal world employers would only recruit employees who are guaranteed never to assault their customers.
To this end, many employers choose to ‘profile’ their candidates, selecting attributes correlated with the most effective performance to minimise the likelihood of undesirable actions. This avoids complete reliance on the (sometimes inaccurate and subjective) method of ‘gut instinct’ when interviewing through involving objective psychometric or work sample testing to ascertain different requirements. Such testing need not be exclusive to senior positions and is often carried out in a short test for junior positions as well.
These tests can determine if the candidate has the requisite ‘positive attributes’ for the role. Testers can, for example, elect to profile for success in fields of customer service and evaluate attributes such as the level of emotional control which typically contributes to dangerous outbursts like the assault involving the Morrisons employee.
How can we help
It is important that the psychometric testing expert work closely with an employment lawyer to ensure that the employer’s best interests are kept in mind and that they are protected. All parties involved need to take reasonable steps both to ensure suitability of staff from the outset as well as applying effective HR processes and conducting training throughout the employment life cycle.
Abbiss Cadres’ unique blend of law and tax, HR consulting and employee communications ensure that employers can attain joined-up support from both employment lawyers and HR consultants when recruiting and maintaining staff.
Amongst other services, our expert team can assist with:
- Establishing requirements for positions;
- Conducting psychometric tests;
- Conducting work sample testing;
- Reviewing policies and processes to ensure they are in line with the requirements of each position;
- Drafting and conducting training of employees to communicate any changes in processes and ensure compliance.
Please email us to discuss how we can help.
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