Employer liability for employee actions in the UK and UAE

Employer liability for employee actions in the UK and UAE

Postby pitano1 » Sun Oct 13, 2013 11:34 am

As businesses expand globally it is essential that employers appreciate the scope
of vicarious liability and the potential financial exposure in each jurisdiction within
which they operate and, where appropriate, take steps to mitigate the impact of
such exposure. This article considers the exposure of employers in the UK, a
common law jurisdiction, in which vicarious liability has evolved through a binding
system of precedents and in the UAE, where the principle that an individual or
business may be vicariously liable for the acts and omissions of his/her workers is
set out in UAE Federal Law No. (5) of 1985 the Civil Code).

Vicarious liability is the holding of a third party responsible for the actions and harm cause by
another. The most frequent form of vicarious liability is that of an employer for the acts and omissions
of an employee. As businesses expand globally it is essential that employers appreciate the scope of
vicarious liability and the potential financial exposure in each jurisdiction within which they operate
and, where appropriate, take steps to mitigate the impact of such exposure.

Vicarious Liability
Despite their differing origins, the fundamental elements of vicarious liability in the UK and the UAE
are very similar. Broadly speaking, both jurisdictions require the following conditions to be satisfied in
order to establish vicarious liability:
a subordinate relationship must exist, under which the supervisor has power or control over the
subordinate;
a wrongful act must be committed by the subordinate; and
the harmful act that causes damage to a third party must be committed "in the course of
employment".

Subordinate relationship

UK case law has established that, in general, if the person who caused the harm was an
independent contractor, rather than an employee, then the employer will not be subject to vicarious
liability. Indeed this is a defence regularly used by employers facing such claims in the UK.
In order to determine whether the person who committed the harmful act was in fact an employee,
the UK courts will undertake a detailed assessment of the facts. The following factors will generally
be indicative of an employee – employer relationship: (i) the individual is engaged under a contract
for personal service (i.e. the individual is not to be able to provide a substitute or to subcontract their
obligations under the contract); (ii) the individual is given specific direction as to how the work is to be
completed and has limited discretion in the actual method of performance; (iii) the individual's work is
considered to be integral to the operation of the business; and (iv) the individual does not assume
any economic incentive or economic risk in committing the act.

Wrongful act
In the UK, vicarious liability generally arises in the context of a tort (i.e. a harmful act) having been
committed by an individual, giving rise to a civil claim for damages. In the employment context, a key
issue when examining vicarious liability is to decide whether or not a tort falls within the "course of
employment". Whilst certain criminal acts such as assault and fraud are also torts, the criminal nature
of such an act will often take it outside of the usual scope of employment and therefore the employer
will not usually find themselves vicariously liable for an employee's criminal acts.
An employer in the UK can also be vicariously liable for breach of a statutory duty imposed on an
employee, notably under the Protection from Harassment Act 19971. Similarly, under the UK's
discrimination legislation, discriminatory acts carried out by an employee in the course of employment
(e.g. harassment based on a person's disability) are treated as having been committed by the
employer, unless the employer can show that it took such steps as were reasonably practicable to
prevent the employee from committing the discriminatory act (e.g. having a clear policy, training staff
and educating them about equality and diversity).

vicarious liability
this saves you,educating`the robots,about nuremburg,as most wont
know about it...anyway. :grin:
If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law.
Henry David Thoreau
ALL UNALIENABLE RIGHTS RESERVED -AB INITIO - Without Recourse - Non-Assumpsit
pitano1
Moderator
Moderator
 
Posts: 1147
Joined: Thu May 14, 2009 1:38 pm
Location: on the land

Return to Useful Information

Who is online

Users browsing this forum: No registered users and 1 guest