By Elliot Kay
An employer appealed a first instance decision in which it was held vicariously liable for the actions of employee.
The employer operated a plumbing business and had premises on both sides of a road (one set of premises were used as an office, the other premises were used as a shop).
At the time of the accident, traffic in the road was stationary and a police officer (the Claimant at first instance and Respondent to the appeal) was cycling in the cycle lane of the carriageway. The accident took place shortly before 1pm when the employee, who was wearing a shirt displaying the employer’s logo, was walking towards his employer’s shop and collided with the Claimant/Respondent, knocking him off his bike and causing him injury. The employee’s shift had finished at 12 noon and the employer asserted it was not responsible for the actions of the employee at the time of the accident. At first instance the employee did not give evidence but the judge held he was acting in the course of his employment because he was heading for the employer’s shop and was wearing the employer’s uniform.
The Court of Appeal took a different view and allowed the appeal. On appeal it was held that there was no evidence to infer that the employee was working at the time of the accident. He lived only 10 minutes away from the scene of the accident and could quite easily have found himself in that location wearing his work uniform shortly after the conclusion of his shift without being on work duties.
Further, before finding an employer to be vicariously liable for the actions of an employee, the court had to consider whether there was sufficient connection between the conduct of the employee and the functions which were ordinarily entrusted to him/her in the course of his/her employment. The employee in this case was a shop assistant and, even if he was at work at the time of the accident, it was impossible to know if crossing the road almost an hour after his shift was connected or sufficiently connected to his employment to make a finding of vicarious liability. Having not heard evidence from the employee there was no evidence to suggest his crossing of the road was connected to his employment and it was therefore not available to the first instance judge to impose vicarious liability on the employers.