Vicarious liability – what is it ?

An employer is responsible for the behaviour of its employees while conducting business for the employer. As such, the employer is legally entitled to expect a minimum standard of behaviour from its employees. Where this standard is not met, this may lead to grounds for disciplinary proceedings against the employee. Disciplinary proceedings in employment law may also come about as a result of the employee failing to come up to a required standard of work or by him / her being regularly absent from or late for work. Where disciplinary measures are to be undertaken against an employee, there are particular legal formats that must be adhered to by the employer.

Lack of knowledge of the law is no defence in the legal system, however this does not extend to employment law. It is the employer’s responsibility to ensure that all of its employees are aware of the disciplinary processes it follows. Failure to do so will invalidate any disciplinary processes that the business attempts to enforce, because those particular contractual terms are unknown to the employee and are therefore technically outside the contract of employment. In basic terms, the employee should be provided with an employee handbook wherein a section listing disciplinary measures and the employee’s right to appeal is clearly stated. Alternatively, access to a shared public drive on the business intranet would be an acceptable means of communicating the disciplinary and grievance procedure to the employee, providing that the employer has communicated knowledge of the whereabouts and contents to the employee. Many employers use an employee induction day to ensure this ground is always covered with new staff. Any updates to company policy and procedures should equally be communicated to all existing employees to ensure their awareness of change.

The disciplinary policies and procedures alter slightly from one business to the next, however there are certain prerequisites that must be included to make those policies and procedures valid. Communication has already been considered above. Besides communication is the fact that the policy must be in writing and they must be written clearly and intelligibly. A vital piece of information to be provided to each employee regards the person to whom they have the right to appeal if they are subsequently disciplined and wish to appeal against such measures. Failure to provide an employee with any of this basic information may lead to an award being made to the employee based on between two and four weeks’ pay in the event of any future tribunal hearings against that employee.

Where the discipline is on the grounds of gross negligence or gross misconduct, such as fighting or operating machinery while inebriated, the disciplinary process can leap to the final stages of the normal procedure. This does not mean that the employee can be ‘sacked on the spot’. The individual concerned is still legally entitled to an investigation and a hearing where they may put forward their side of the situation, including any mitigating circumstances. In such cases as these, the individual is usually suspended on full pay pending an investigation and hearing and should receive fair and due written notice as to when these hearings are scheduled to take place, where the hearing is to take place and who will be conducting / present at the hearing. The individual must also be informed in writing before the hearing that they have the right to legal representation at the meeting. The representation may be from a union official or work colleague. The employee is not, however, entitled to bring in anyone from outside the business to represent him unless that person is union affiliated.

Disciplinary proceedings that are to be undertaken for any other incidence than for gross negligence or gross misconduct, such as poor time keeping or sub-standard work, must follow the company’s disciplinary procedures as stated in the employee handbook or contract. These tend to follow a similar format, which is a verbal warning, followed by a first written warning and a final written warning. A verbal waning should be recorded in writing to commence an evidentiary trail, as should any minutes taken of any later written warnings. At each stage, the employee should be reminded of their right to appeal against the warning; courtesy alone dictates that the employee is reminded where to find these terms of appeal and who their appropriate line manager is. There is a legal time period after which any warning given to an employee expires, although it is normally stated in either the employee handbook or disciplinary policies. Similarly, an employee only has a limited amount of time in which to lodge an appeal, usually seven working days where reasonably practicable.

Vicarious liability will also apply to personal injury claims as well as employment law issues.

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