Vicarious liability - 'Frolic' cases and deviation from employment

Learning Outcomes

After studying this article, you will be able to explain when an employer is vicariously liable for an employee’s tort, distinguish between minor deviations and ‘frolics’, and apply the ‘close connection’ test. You will be able to identify and analyse scenarios where an employee departs from their duties, assess employer liability, and answer SQE1-style questions on this topic.

SQE1 Syllabus

For SQE1, you are required to understand the rules and principles governing vicarious liability, especially where an employee deviates from their employment duties. In your revision, focus on:

• the requirements for vicarious liability (employment relationship, commission of a tort, course of employment)
• the meaning of ‘course of employment’ and the distinction between minor deviations and ‘frolics’
• the ‘close connection’ test and its application to intentional and negligent torts
• how courts determine liability when an employee departs from their duties for personal reasons
• the practical consequences for employers and claimants in ‘frolic’ cases

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. What are the three requirements that must be satisfied for an employer to be vicariously liable for an employee’s tort?
2. In the context of vicarious liability, what is meant by a ‘frolic’?
3. Which test do courts now use to determine if an intentional tort by an employee is sufficiently connected to their employment?
4. True or false? An employer is always liable for any tort committed by an employee during working hours, regardless of the employee’s purpose.

Introduction

When an employee commits a tort while working, the employer may be held responsible under the doctrine of vicarious liability. However, if the employee strays from their duties for personal reasons—a situation often called a ‘frolic’—the employer’s liability is less clear. This article explains how the law distinguishes between minor deviations (where liability may still attach) and true ‘frolics’ (where the employer is not liable), and how the courts apply the ‘close connection’ test to modern employment scenarios.

Key Term: vicarious liability Vicarious liability is the legal principle that holds one person (usually an employer) liable for the torts committed by another (usually an employee) in the course of employment.

Key Term: course of employment The course of employment refers to acts done by an employee while carrying out their duties or activities closely related to their job, as opposed to acts done for purely personal reasons.

Key Term: frolic A ‘frolic’ is a substantial departure by an employee from their work duties for personal reasons, breaking the link to the employer’s liability.

Key Term: close connection test The close connection test asks whether the employee’s wrongful act is so closely linked to their employment that it is fair and just to hold the employer liable.

Vicarious Liability: The Basic Requirements

For an employer to be vicariously liable for an employee’s tort, three elements must be satisfied:

1. There is an employment relationship (not an independent contractor).
2. The employee has committed a tort.
3. The tort was committed in the course of employment.

If any of these are missing, the employer is not vicariously liable.

Deviation from Employment: Minor Detours vs ‘Frolics’

Not every departure from an employee’s duties will absolve the employer of liability. The law distinguishes between:

• Minor detours: Small deviations for personal reasons (e.g., stopping for lunch on a delivery route). The employer may still be liable.
• Frolics: Major departures where the employee acts entirely for personal purposes (e.g., visiting a friend across town during work hours). The employer is not liable.

The key is whether the employee was still engaged in their employer’s business or had set off on a new, independent journey.

Worked Example 1.1

A delivery driver is instructed to deliver parcels along a set route. On the way, the driver stops at a shop to buy a drink and, while pulling out of the parking space, negligently hits another car.

Answer: This is a minor detour incidental to the delivery route. The employer is likely to be vicariously liable.

Worked Example 1.2

The same driver, instead of completing deliveries, drives ten miles in the opposite direction to visit a friend. On the way, the driver negligently causes an accident.

Answer: This is a ‘frolic’—a substantial deviation for personal reasons. The employer is unlikely to be vicariously liable.

The ‘Close Connection’ Test

In modern law, especially for intentional torts or criminal acts, courts use the close connection test. The question is whether the wrongful act is so closely connected to the employee’s job that it is fair and just to hold the employer liable.

• If the act is an unauthorised way of doing an authorised job, liability may attach.
• If the act is entirely personal, with no connection to the job, liability will not attach.

Worked Example 1.3

A nightclub bouncer, employed to maintain order, gets into an argument with a patron and assaults them while ejecting them from the club.

Answer: The assault occurred while performing job duties (even if done in an unauthorised way). The employer is likely to be vicariously liable under the close connection test.

Application to Modern Work Scenarios

The principles above apply regardless of whether the employee is working in-person, remotely, or in non-traditional roles. The focus remains on the nature of the act and its connection to the employee’s duties.

Revision Tip

When analysing ‘frolic’ cases, always ask: Was the employee still furthering the employer’s business, or acting entirely for personal reasons? Use the facts to support your answer.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Vicarious liability requires an employment relationship, a tort, and that the tort was committed in the course of employment.
• Minor deviations from employment duties may still result in employer liability.
• A ‘frolic’ is a substantial personal departure that breaks the link to employer liability.
• The ‘close connection’ test is used to assess liability for intentional or unauthorised acts.
• Courts look at the purpose, extent, and context of the deviation to determine liability.

Key Terms and Concepts

• vicarious liability
• course of employment
• frolic
• close connection test