NB. For notes on the special position under discrimination law go to Equality Act 2010/vicarious liability . This note is concerned with the ordinary common law principles.

Problems arise if someone suffers as the result of an employee's wrongful act which was not authorised by the employer. It is not always obvious in such a situation whether an employer should have liability. There is of course no legal problem if the wrongful act done by an employee was authorised by the employer. In that case the employer is generally fully liable (and the employee may also be liable) to the injured party.

Until the late 1990's the basic test for deciding whether an employer should be held liable in such a case was to consider whether the employee had used an unauthorised method to do a job he was authorised to do (in which case the employer would be vicariously liable) or whether he was simply doing something which was unauthorised (in which case the employer would not be vicariously liable). In 2001 the House of Lords ruled that "important legal decisions should not turn on such semantics" ( Lister & ors v Hesley Hall Ltd 2001 ICR 665, House of Lords [2001] UKHL 22) and it is now established that the correct test is to concentrate on the connection between the nature of the employment and the particular wrong and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable (see for example Dubai Aluminium Co Ltd v Salaam & ors HL 2003 IRLR 608 and Bernard v The Attorney General of Jamaica PC 2005 IRLR 398). More than one "employer" can share 'joint vicarious liability' in line with Court of Appeal decisions. None of this of course rules out the old traditional test as an aid to deciding whether the employer should be liable for unauthorised wrongful acts of his employees but does put it into a proper perspective.

An employer can be vicariously liable for breach of a statutory duty imposed on his employee, notably under the Protection from Harassment Act 1997 ( Majrowski v Guy's & St Thomas's NHS Trust HL 2006 ICR 1199 and Green v DB Services Ltd HC 2006 IRLR 764). However for an employer to be vicariously liable for an employee's deliberate bullying of a fellow employee the injury suffered by the fellow employee must have been foreseeable (Clark v Chief Constable of Essex Police [2006] EWHC 2290, High Court on 18th September 2006).