Vicarious liability - Close connection test

Learning Outcomes

This article explains vicarious liability and the modern 'close connection' test used to determine whether an employee's tortious act falls within the course of employment, including:

• The three essential elements required to establish vicarious liability
• Employment and relationships akin to employment: control, organisation, and economic reality tests, and modern policy rationale
• Acts within the course of employment versus acts outside it (a ‘frolic of one’s own’), including prohibited and criminal acts
• The ‘close connection’ test: origin in Lister v Hesley Hall Ltd, refinement through Mohamud v WM Morrison Supermarkets plc, and clarification in Various Claimants v WM Morrison Supermarkets plc [2020] UKSC 12
• Intentional wrongdoing such as assaults, sexual abuse, harassment, and fraud, with landmark cases and contrasts where liability is rejected
• Extension of vicarious liability to relationships akin to employment (Catholic Child Welfare Society, Cox v Ministry of Justice, Armes v Nottinghamshire CC) and limits to that extension (Barclays Bank plc v Various Claimants)
• Dual vicarious liability and non-delegable duties as distinct concepts

SQE1 Syllabus

For SQE1, you are required to understand vicarious liability and the modern 'close connection' test used to determine whether an employee’s tort was committed in the course of employment, with a focus on the following syllabus points:

• The three essential elements required to establish vicarious liability.
• Distinguishing employees from independent contractors: control, organisation, and economic reality tests with key authorities.
• The modern 'close connection' test established in Lister and applied in subsequent cases like Mohamud, Mattis v Pollock, Bellman v Northampton Recruitment Ltd, and clarified in WM Morrison (2020).
• How the test applies to intentional torts committed by employees, including assaults, sexual abuse, harassment, and fraud.
• The extension of vicarious liability to relationships 'akin to employment' (Catholic Child Welfare Society, Cox, Armes) and its limits (Barclays Bank).
• Situations involving prohibited acts, unauthorised modes of doing authorised acts, and the ‘frolic of one’s own’ distinction (Century Insurance, Rose v Plenty, Hilton v Thomas Burton).
• Travel and detours: when employees are in the course of employment while travelling (Smith v Stages).
• Recognition of dual vicarious liability where two defendants share sufficient control (Viasystems).
• The difference between vicarious liability and an employer’s personal liability (non-delegable duty), and the possibility of contribution/indemnity against the employee.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which three elements must be present for an employer to be held vicariously liable for the actions of an employee?
2. What is the name of the modern test used to determine if an employee’s tort was committed in the course of employment, particularly for intentional wrongdoing?
3. In which landmark case was the 'close connection' test established in the context of intentional torts (specifically sexual abuse)?
4. True or False: An employer can only be vicariously liable for the negligent acts of their employees, not intentional torts like assault.

Introduction

Vicarious liability imposes legal responsibility on one party (often an employer) for a tort committed by another (often an employee), even where the first party is not personally at fault. This principle is rooted in public policy, aiming to ensure that victims have recourse against a party who is likely to have the means to compensate (often backed by insurance) and who benefits from the activities that created the risk. The rationale includes risk distribution (enterprise liability), deterrence, and fairness: where a business creates or materially increases the risk of harm through the activities it assigns, it should bear the cost when that risk eventuates.

For the SQE1 assessment, understanding when an employer will be held liable for the acts of its employees is essential, particularly focusing on whether the tort occurred within the 'course of employment'. The modern approach to this question hinges on the 'close connection' test. Although the traditional Salmond formulation remains useful for straightforward negligence (authorised acts and unauthorised modes of performing authorised acts), it is insufficient in many intentional tort cases. The close connection test addresses that gap by examining the nexus between the tort and the field of activities the employee was employed to perform.

Key Term: Vicarious liability
The legal principle where one party can be held liable for the torts committed by another party due to a specific legal relationship between them, most commonly employer and employee.

Establishing Vicarious Liability: The Core Elements

For vicarious liability to arise, typically in an employment context, three core requirements must be met:

1. A tort must have been committed: The person whose actions are in question must have committed a recognised tort (e.g., negligence, battery, defamation, statutory tort such as harassment). Without an existing tort, there can be no vicarious liability. In practice, claimants often sue the employer and employee as joint tortfeasors, and liability can be joint and several. If the employer pays, they may seek contribution from the employee under the Civil Liability (Contribution) Act 1978, or indemnity at common law where appropriate.
2. Relationship of employment or akin to employment: There must be a legal relationship of employer and employee, or one that is sufficiently similar ('akin') to employment, between the tortfeasor and the party alleged to be liable. Distinguishing employees from independent contractors is important:
   • Control test: whether the alleged employee works under the direction and supervision of the employer.
   • Organisation test: whether the work is performed as part and parcel of the employer’s business.
   • Economic reality test: whether, viewed holistically, the arrangements are consistent with a contract of employment (Ready Mixed Concrete Ltd v Minister of Pensions). The modern approach takes a realistic view of how organisations operate and the risks they create. Where the relationship is not a formal employment contract, liability may still attach if it is akin to employment (see below).
3. The tort must have been committed in the course of employment (or the quasi-employment relationship): The wrongful act must be sufficiently connected to the work the employee (or person in a similar role) was engaged to do. The older Salmond test framed this as authorised acts and unauthorised modes. The modern close connection test reframes the inquiry for difficult cases, particularly intentional wrongdoing and criminal acts.

Analysing the third element often presents the most complex issues. Consider:

• Authorised acts in unauthorised ways: generally within the course of employment (Century Insurance v NI Road Transport Board).
• Acts outside scope: where the employee substantially deviates from the field of activities (a ‘frolic of their own’), the employer will not be liable (Hilton v Thomas Burton (Rhodes) Ltd).
• Travel in the course of employment: employees travelling for work purposes may be within the course of employment even outside normal work hours (Smith v Stages), whereas routine commuting and personal detours are more likely outside the course.

Where two different organisations exercise sufficient control over the tortfeasor at the relevant time, the court may find dual vicarious liability (Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd).

The Close Connection Test

The limits of the traditional Salmond test became apparent in cases involving intentional wrongdoing by employees, such as assaults or abuse, which could not easily be classified as merely an 'unauthorised mode' of performing employment duties. The House of Lords (now Supreme Court) addressed this in Lister v Hesley Hall Ltd [2001] UKHL 22.

Key Term: Close connection test
The test used to determine if an employee's tort occurred in the course of employment, asking whether the tort was so closely connected with their employment duties that it is fair and just to hold the employer liable.

In Lister, the warden of a residential school for children with behavioural difficulties sexually abused pupils in his care. The House of Lords held the employer vicariously liable. Lord Steyn established the 'close connection' test: was the employee's tort so closely connected with his employment that it would be fair and just to hold the employer liable? The Court found that the warden's duties involved close contact with the children, creating the opportunity for the abuse. The tort was therefore closely connected to the nature of his employment.

This reorientation shifts the focus from the authorisation of the act to the connection between the wrongful act and the nature of the job entrusted to the employee by the employer. It considers whether the employment created or significantly enhanced the risk of the tort occurring. The Canadian jurisprudence (e.g., Bazley v Curry) influenced the policy reasoning: liability is more readily imposed when an enterprise has introduced a risk that materialises in harm closely linked to the assigned duties.

Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 refined how courts examine connection in violent incidents involving customers. Lord Toulson identified two stages:

• First, define the “field of activities” entrusted to the employee (what job they were employed to do).
• Second, assess whether there is a sufficient connection between the position in which the employee was employed and their wrongful conduct, such that it is just to impose liability.

In Mohamud, the employee worked at a petrol kiosk and was tasked with serving customers and responding to inquiries. The assault on a customer followed from a customer interaction begun in the course of employment and was treated as part of a “seamless episode”. The Supreme Court found the assault sufficiently connected to the employee’s duties.

The Supreme Court later clarified the limits of Mohamud in Various Claimants v WM Morrison Supermarkets plc [2020] UKSC 12. An employee engaged in a personal vendetta leaked payroll data online. Although he had been entrusted with handling data, his wrongful disclosure was held to be motivated by personal reasons and not sufficiently connected to his field of activities. This decision clarifies that:

• Intention and motive can matter in assessing connection. If the employee’s act is in pursuit of a personal vendetta or is independent wrongdoing, liability is unlikely.
• The test is not a general “seamless episode” rule; the required nexus must be strong, and merely being at work or using equipment provided by the employer is insufficient.

Further illustrations of a close connection include:

• Mattis v Pollock [2003] (bouncer’s stabbing outside the nightclub found to be closely linked to his violent conduct instigated as part of his role).
• Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214 (assault by a managing director on an employee at a post-Christmas-party gathering held sufficiently connected given the MD’s exercise of managerial authority during the incident).
• Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 191 (fraud by a partner closely connected to the partnership’s business; though a partnership case, it remains influential in analysing close connection in corporate contexts).
• Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34 (employer vicariously liable for harassment by an employee under the Protection from Harassment Act 1997, applying the close connection principles).

Key Term: Course of employment
The scope of activities performed by an employee that are considered part of their job, or sufficiently connected to it, for the purpose of establishing vicarious liability. Acts falling outside this scope (a 'frolic of their own') generally do not attract employer liability.

Worked Example 1.1

A delivery driver, employed by Courier Co Ltd, gets into an argument with a customer, Mr Jones, over a parking space outside Mr Jones's house while delivering a parcel. The argument escalates, and the driver punches Mr Jones, causing injury. Is Courier Co Ltd likely to be vicariously liable for the assault?

Answer:
Yes, likely. Applying the close connection test following Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, the driver's interaction with Mr Jones arose directly from his employment duty (delivering parcels). Although the assault was an unauthorised and wrongful act, it occurred during an interaction that was part of his job. The assault followed seamlessly from the argument about performing his duties. Therefore, the tort is likely sufficiently closely connected to his employment for Courier Co Ltd to be held vicariously liable.

Intentional Torts and Prohibited Acts

The close connection test is particularly relevant for intentional torts (like assault, battery, fraud, theft, harassment) committed by employees. An employer will not be liable if the employee's act is considered independent wrongdoing unrelated to their employment – often described as the employee being on a 'frolic of their own'. This label goes back to classic authority indicating substantial deviation from assigned duties breaks the connection with employment.

However, even if an act is expressly prohibited by the employer, it might still be within the course of employment if it is closely connected to the employee's duties. The distinction is between the manner of performing the job (how to do it) and the scope of the job (what the employee is supposed to do). In Rose v Plenty, a milkman prohibited from using helpers nonetheless remained within the course of employment when he negligently allowed a boy to assist in deliveries; the prohibition related to how the job should be performed, not what the job was. Similarly, in Century Insurance v NI Road Transport Board, a petrol tanker driver caused an explosion by smoking during delivery. Smoking was prohibited, but the employee was performing an authorised act (delivering fuel) in an unauthorised way.

By contrast, where the employee engages in activities outside the scope of their duties (e.g., giving lifts unconnected to deliveries, or leaving work to visit a pub on a break and negligently causing an accident), courts are more likely to find a ‘frolic of their own’ (Hilton v Thomas Burton).

Several intentional tort scenarios illustrate the analysis:

• Violent incidents connected to security or customer interaction roles: bouncers or security staff who engage in violence may trigger liability if the violent reaction is closely tied to the role and expectations created by the employment (Mattis v Pollock). Equally, ordinary employees dealing with customers may also trigger liability under Mohamud.
• Off-duty incidents and social events: the context and the exercise of managerial authority are important. In Bellman, the managing director effectively acted in a managerial capacity during the incident; this connection justified liability. However, ordinary social settings without a business nexus often do not suffice.
• Fraud and misuse of position: if an employee’s entrusted role allows them to carry out deceit or misuse confidential information in a way that is closely connected with their field of activities, liability may arise (Dubai Aluminium). Conversely, where the wrongdoing is a personal vendetta and the use of work-related tools is incidental, liability is unlikely (WM Morrison 2020).
• Statutory torts like harassment: the close connection analysis applies to statutory wrongs, and courts have accepted vicarious liability in such cases (Majrowski).

Key Term: Course of employment
The scope of activities performed by an employee that are considered part of their job, or sufficiently connected to it, for the purpose of establishing vicarious liability. Acts falling outside this scope (a 'frolic of their own') generally do not attract employer liability.

However, even if an act is expressly prohibited by the employer, it might still be within the course of employment if it is closely connected to the employee's duties. For example, if a driver is told not to exceed speed limits but does so negligently while making deliveries (an authorised task performed in an unauthorised way), the employer is likely liable. If the same driver takes the company van for a personal trip entirely unrelated to work, this would likely be a 'frolic of their own', and the employer would not be liable for torts committed during that trip.

Worked Example 1.2

Sarah works as a cashier at a supermarket. Company policy strictly forbids employees from using customer loyalty card details for personal gain. Sarah uses a customer's details to fraudulently obtain loyalty points for herself. Is the supermarket vicariously liable for Sarah's fraud?

Answer:
Possibly. The act is clearly prohibited and fraudulent. However, applying the close connection test, Sarah's employment gave her access to the customer loyalty system and the opportunity to commit the fraud arose directly from her duties handling customer transactions. A court would consider if the connection between her role and the fraud was sufficiently close to make it fair and just to hold the employer liable, similar to cases involving misuse of position or information obtained through employment. If the fraud was carried out using the very functions she was entrusted to perform (processing transactions), liability would be more likely. If, instead, she used systems in pursuit of a purely personal vendetta unrelated to her entrusted tasks, liability would be less likely.

Worked Example 1.3

A volunteer scout leader, vetted and trained by the local Scout Association, negligently fails to supervise scouts during an activity, leading to one scout injuring another. Is the Scout Association potentially vicariously liable?

Answer:
Potentially yes. The relationship between the volunteer leader and the Scout Association might be considered 'akin to employment'. The leader carries out activities fundamental to the Association's purpose (running scout activities), is under its control regarding training and procedures, and the Association created the risk by assigning supervisory duties. If these factors are met, the close connection test would then be applied to the negligent act itself.

Worked Example 1.4

A nightclub employs security staff. One bouncer aggressively ejects a patron and, after a brief pursuit outside, stabs him. The club argues the stabbing occurred off the premises and was a personal act. Is vicarious liability likely?

Answer:
Likely. In Mattis v Pollock, vicarious liability was imposed where the bouncer’s violent conduct was encouraged and linked to the role. The stabbing outside followed the confrontation initiated during the course of employment and was deemed closely connected to the field of activities. The proximity of the events and the role-specific expectations supported liability.

Worked Example 1.5

A managing director attends a company-organised Christmas party. Later, at an after-party, the MD lectures staff about business matters and, when challenged, assaults an employee. Is the company vicariously liable?

Answer:
Likely. In Bellman v Northampton Recruitment Ltd, the Court of Appeal found a close connection because the MD was exercising managerial authority in a work-related discussion, even though it was after the formal event. The assault was closely connected to the MD’s field of activities and authority.

Worked Example 1.6

Two employees drive a company van to a pub during a work break without permission. On the return journey they negligently injure a pedestrian. Is the employer vicariously liable?

Answer:
Unlikely. In Hilton v Thomas Burton (Rhodes) Ltd, an unauthorised detour for personal reasons amounted to a ‘frolic of their own’. The employees had substantially deviated from their work duties, breaking the connection with employment.

Worked Example 1.7

An employee is sent out during work hours to deliver documents. On the way back, he detours briefly to purchase lunch. During the return leg he negligently injures a cyclist. Is the employer liable?

Answer:
Likely. Minor detours incidental to work travel often remain within the course of employment. Smith v Stages indicates that travel undertaken on the employer’s business typically falls within employment, and a brief incidental stop would not usually constitute a frolic.

Extension to Relationships 'Akin to Employment'

The principle of vicarious liability has been extended beyond the traditional employer-employee relationship to cover situations where the relationship between the tortfeasor and the defendant is 'akin to employment'. This was established in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the 'Christian Brothers' case), involving abuse by members of a religious order teaching at a school managed by the order.

The Supreme Court identified key factors indicating a relationship akin to employment:

• The relationship involves activity undertaken on behalf of the defendant organisation.
• The activity is fundamental to the defendant's operations.
• The defendant created or enhanced the risk of the tort occurring by assigning the activity to the tortfeasor.
• The tortfeasor is, to some degree, under the control of the defendant.
• The defendant has the means (often through insurance) to compensate the victim.

Cox v Ministry of Justice [2016] UKSC 10 reinforced that the absence of a traditional employment contract does not preclude vicarious liability where a person is integrated into the defendant’s enterprise, carrying out activities for its benefit, under some degree of control, and where the assignment of those activities created the risk. In Cox, a prisoner working in a prison kitchen negligently injured a kitchen manager; the prison authority was held vicariously liable despite the lack of a formal employment relationship.

Armes v Nottinghamshire County Council [2017] UKSC 60 imposed vicarious liability on a local authority for abuse committed by approved carers, emphasising the authority’s role in placing and supervising the placement arrangement, the incorporation of care placements into the authority’s enterprise, and the risk created by entrusting parents with care.

There are limits. In Barclays Bank plc v Various Claimants [2020] UKSC 13, the bank was not vicariously liable for sexual assaults committed by a doctor engaged to perform pre-employment medical examinations. The doctor was an independent contractor in business on his own account; the relationship lacked the key features that make it akin to employment. This clarifies that the “akin to employment” extension does not swallow the distinction between employees and true independent contractors.

Key Term: Relationship akin to employment
A legal relationship possessing features similar to traditional employment (such as inclusion in the organisation, control, and risk creation), allowing vicarious liability to be imposed even without a formal employment contract.

Exam Warning

Remember that the 'akin to employment' doctrine significantly broadens the scope of vicarious liability beyond formal employment contracts. For SQE1, be prepared to analyse relationships involving volunteers, caregivers, or members of unincorporated associations using the factors outlined by the Supreme Court. Do not assume vicarious liability only applies to traditionally employed staff. Equally, note the limits: where the tortfeasor is a true independent contractor in business on their own account (Barclays Bank), vicarious liability will not be imposed. Distinguish vicarious liability from an employer’s non-delegable duty (e.g., Woodland v Essex County Council), which concerns personal liability for ensuring reasonable care and is conceptually distinct.

Summary

Vicarious liability allows a claimant to sue an employer (or similar body) for a tort committed by an employee (or someone in a relationship akin to employment). Key requirements are: (1) a tort committed by the employee/individual; (2) a relationship of employment or akin to employment; and (3) the tort occurring within the course of that employment/relationship. The modern test for 'course of employment', especially for intentional torts, is the 'close connection' test from Lister, asking if the tort is so closely connected to the employment duties that imposing liability on the employer is fair and just.

In applying the test:

• Define the “field of activities” entrusted to the employee, then ask whether the wrongful act is sufficiently connected to those activities.
• Express prohibitions and criminality do not automatically absolve the employer; if the employee’s role created or materially increased the risk and the wrongdoing is closely linked to that role, liability may follow.
• Motive matters where the act is a personal vendetta or independent wrongdoing, breaking the connection (WM Morrison 2020).
• The doctrine extends to relationships akin to employment (Catholic Child Welfare Society, Cox, Armes), but not to true independent contractors (Barclays Bank).
• Be alert to travel-related liability, minor detours, and situations where dual vicarious liability may arise.
• Where vicarious liability is established, contribution or indemnity from the employee may be available to the employer depending on fairness and contractual obligations.

Key Point Checklist

This article has covered the following key knowledge points:

• Vicarious liability imposes liability on one party for the tort of another based on their relationship.
• Three elements are needed: a tort, an employment (or akin) relationship, and the tort occurring in the course of employment.
• Distinguish employees from independent contractors using the control, organisation, and economic reality tests.
• The traditional 'Salmond test' is often insufficient for intentional torts.
• The modern 'close connection' test (Lister) assesses the link between the tort and employment duties to determine if liability is fair and just.
• Mohamud v WM Morrison affirmed the application of the close connection test to acts of violence arising from customer interactions.
• Various Claimants v WM Morrison (2020) clarified limits: personal vendetta or independent wrongdoing breaks the connection even if work facilities are used.
• Mattis v Pollock and Bellman demonstrate liability for violent acts where the role or managerial authority provides the necessary connection.
• Express prohibition of an act does not automatically take it outside the course of employment if it’s an authorised task performed in an unauthorised way (Century Insurance; Rose v Plenty).
• Employers are generally not liable for acts constituting an employee's 'frolic of their own' (Hilton), though minor detours incidental to work travel may remain within employment (Smith v Stages).
• Vicarious liability extends to relationships 'akin to employment' based on factors like control, inclusion, and risk creation (Catholic Child Welfare Society; Cox; Armes), but does not apply to true independent contractors (Barclays Bank).
• Dual vicarious liability can arise where more than one defendant sufficiently controls the tortfeasor (Viasystems).
• Vicarious liability is distinct from an employer’s non-delegable duty; where liability is imposed vicariously, contribution/indemnity from the employee may be sought.

Key Terms and Concepts

• Vicarious liability
• Close connection test
• Course of employment
• Relationship akin to employment