Are your employees off on a frolic of their own?

Posted on

Who are BL Claims Solicitors

BL Claims Solicitors specialise in personal injury, clinical negligence and travel claims, providing our clients with hands-on support, nationally.

We are rated as one of the top firms in the UK and believe in speaking to our clients in jargon-free language and ensuring you're speaking to a highly qualified lawyer right from the outset

The principle and policy behind vicarious liability

The starting point is that an employer can be liable to third parties for negligent acts of their employees committed in the course of their employment that result in injury.

There is a limit to the principle in that if your employee is off on what has been termed by the court, 'a frolic of their own' liability will not attach. Examples of this could be assaults outside of working hours on fellow employees, engaging in horseplay with fellow employees whilst at work, or more specifically where a bus conductor employed to collect fares chose (negligently) to drive the bus (Beard v London Omnibus) 

Test of vicarious liability as applied

There are many cases that have considered the issue of vicarious liability and the test to be applied and when employers will be found to be at fault.

The most often cited is that of Lister v Helsey Hall Limited (2001) which concerned the sexual abuse by a warden of a school boarding house on a pupil. The question and the test applied in this case was where the warden's  action in abusing the pupil was so closely connected with employment that it would be fair and just to hold his employers liable.

The court found that the company which owed and ran the school was responsible for the wardens conduct as the wardens responsibilities included the welfare and safety of his charged. It was considered that vicarious liability would not have attached to other employees for example the gardener whose job would have no connection with the welfare of the pupils.

The application of this close connection test was approved and applied in  Dubai Aluminium v Saalam (2002) and Mattis v Pollock (trading as Flamingos Nightclubs) 2003. The latter provided additional guidance as to how this would be applied.  

Mattis considered the principle of close connection in the context of whether a doorman employed by the owner of a night club was vicariously liable where the doorman stabbed the victim with a knife having left the club but returned (in working hours) bent on revenge.  The court stated that the this would require a simple question to be answered:

-- Whether the  action of the employee  was so closely connected with what was authorised or expected of the employee that it would be fair and just to hold the employer to  be vicariously liable.

The court made it clear that the answer to the question will depend on the specific facts and what is fair and reasonable must be answered in the contact of the closeness or otherwise of that connection. This provides little certainty as each situation will turn on its facts.  

Recent developments

Recent case law has clarified further when employers will be vicariously liable for the actions of their employees in non traditional employment situations.  JGE v English Province of Our Lady of Charity and Trustees of the Portsmouth Roman Catholic Diocesan Trust (2011)  concerned a claim by a 47 year old woman who alleged abuse and rape by Father Baldwin whilst she was resident at the Firs Children's home run by the Portsmouth Roman Catholic Diocesan trust.

The Court had to consider whether the Trust was vicariously liable for the actions of its employee Father Baldwin.

The matter was heard by MacDuff J who agreed with the  Defendants that none of the traditional features of employment contracts were present. There was no contract, no wage and no right to dismiss. It was also agreed that there was little doubt that the priest would have been regarded as office holder rather than employee. He however followed the test of close connection. The fact that there was not a formal employment relationship was not fatal.

MacDuff found that the existence of a close connection between the employee and his employer may be easier to recognise than define but he set out a number of factors that the court should take into account which included:

-- the nature and purpose of the relationship;

-- whether tools, equipment, uniform or premises were provided to assist the performance of the role;

-- the extent  to which one party had been authorised or empowered to act  on behalf of the other;

-- the extent to which the employee may reasonably be perceived as acting on behalf of the employer;

The court found that the trust was liable on the basis that:

-- Father Baldwin was appointed by and on behalf of the trust;

-- He was appointed to do the trusts work: to undertake the ministry on behalf of the church;

-- He was given full authority by the Trust to fulfil that role;

-- He was directed into the community with that full authority and was given free reign to act as representative of the church;

-- He had been trained and ordained for that purpose;

-- He had immense power handed to him by the trust, it was they that appointed him to that position of trust which he then abused. 


The test to be applied when looking at the actions of employees who have committed negligent acts at work is whether the tort was so closely connected with what was authorised or expected of the employee that it would be fair and just to hold the employer liable.  Although seemingly a simple articulation of the test application in practice is difficult and as cases have shown fact specific. However the recent case of JGE has provided useful questions to consider in determining whether actions will fall within the scope of employment.

For further information, please contact Ruth Johnson, a Solicitor in our Personal Injury team, on 02380857309 or at

BL Claims Solicitors are here to help

If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at