The conduct of an employee outside of working hours
Many employers may not
appreciate the extent to which they can be held liable for acts
undertaken by an employee outside of work and working hours.
This is known as Vicarious Liability.
In an employment relationship
Vicarious Liability operates so as to make an employer liable for
the wrongs committed by an employee, where there is a sufficient
connection with the employment. This liability can arise
therefore, where the employer has done no wrong.
In the employment
relationship, the emphasis is therefore, whether there is a
sufficiently close connection with the wrongdoing such that it can
be regarded as in the course of the employment.
The concept of Vicarious
Liability was explored in the case of Chief Constable of
Lincolnshire Police v Stubbs. Here the conduct
complained of, sexual harassment by a police officer, took place in
a pub after work and at a leaving party for a colleague. The
Employment Appeals Tribunal found that both incidents involved
social gatherings of police officers and that this was within the
course of employment.
Each case will be fact
sensitive, an approach stressed by the Court of Appeal in the case
of Sidhu v Aerospace Composite Technology Limited.
In this case, Mr Sidhu was subjected to violence and racial abuse
at a family day out organised by his employer. The Claimant
responded by brandishing a chair. Both Mr Sidhu and his
colleague were dismissed. The Claimant was found to be
unfairly dismissed, but in relation to the discrimination act claim
it was decided by a majority of the Tribunal that the event had
taken place out of work. Although, the day was organised by
the employer the deciding factors were that the event took place at
a public theme park rather than at work, it was outside of working
hours and most of those attending the event were friends and family
and not employees.
The decision of the Employment
Tribunal on Vicarious Liability was overturned by the EAT but
reinstated by the Court of Appeal. This alone serves to
demonstrate how fact sensitive an individual case may
Given that an employer can be
held Vicariously Liable for the employee's conduct it must follow
that an employer can in turn discipline employees and in some
circumstances, dismiss employees when there is a close nexus
between the employee's activities out of work and their role as an
Such activities could have an
adverse effect on colleagues or customers, affect the employee's
ability to do their job or bring the business into
Increasingly, such activities
relate to misuse of social media. In the case of Games
Retail v Laws a dismissal for non-work related comments posted
on a personal Twitter account was deemed to be potentially fair
even though the employee's Twitter account did not specifically
link him to his employer but where the EAT noted that the Tribunal
in the first instance had failed to take account of the public
nature of Twitter when finding that the dismissal was unfair.
In any circumstances, a pro-active employer can seek to
impose standards as to what behaviour is acceptable and what is not
both in and out of the workplace and working time by reviewing
disciplinary procedures and rules, equal opportunities and bullying
and harassment policies.
Posted on: 10/07/2015
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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