Vicarious liability - 'Frolic' cases and deviation from empl...

Learning Outcomes

This article examines vicarious liability in 'frolic' cases and deviation from employment, including:

• The three cumulative requirements for vicarious liability, the distinction between employees, workers, and independent contractors, and when relationships are treated as akin to employment for exam purposes
• How courts analyse the course of employment, distinguishing minor detours, meal and comfort breaks, and incidental acts from substantial personal “frolics” that suspend or exclude employer liability
• The impact of employer prohibitions and instructions, contrasting scope of duties with manner of performance, and typical SQE1 fact patterns involving unauthorised or expressly forbidden acts
• Application of the close connection test to intentional and criminal acts, including the two-step “field of activities” approach, its policy basis, and its limits in recent Supreme Court authority
• Liability issues arising from driving, commuting, and travel between workplaces, with particular focus on deviation, re-entry to employment, and business versus purely personal journeys
• How vicarious liability operates in diverse work arrangements, such as agency, platform and gig work, hybrid and remote working, and other atypical employment relationships
• Scenarios involving workplace social events, misuse of data and confidential information, and other borderline contexts where acts may or may not be sufficiently connected to employment
• Key exam strategies for analysing problem questions, spotting issues around frolic versus minor detour, and structuring clear, concise answers under SQE1 time pressure

SQE1 Syllabus

For SQE1, you are required to understand vicarious liability in 'frolic' cases and deviation from employment, with a focus on the following syllabus points:

• the requirements for vicarious liability (existence of an employment or akin-to-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 effect of prohibitions and instructions: scope of duty vs manner of performance
• travel and deviation: commuting vs business travel; detours, re-entry to employment, and meal breaks
• the operation of vicarious liability where risk is created by the employer’s enterprise
• application to modern work scenarios, including gig economy and atypical work relationships
• insurance, indemnity, and policy considerations in vicarious liability 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, where the employee strays from their duties for personal reasons—a situation often called a ‘frolic’—the employer’s liability is more complex. This article explores judicial approaches to distinguishing between minor incidental acts (where liability is retained) and significant personal 'frolics' (where it is not), analyses the “close connection” test, and considers these principles in diverse factual situations, including those arising from modern working practices.

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:

• There is an employment relationship (not an independent contractor), or a relationship sufficiently akin to employment in appropriate cases.
• The employee has committed a tort.
• The tort was committed in the course of employment.

Each element must be present for vicarious liability to be established.

On the first requirement, employer-employee relationship, the courts use a variety of tests, including the control test, the organizational test, and the economic reality test, to distinguish employees from independent contractors. The economic reality test focuses on whether the individual provides work or skill in return for a wage, works under the employer's control, and whether the contractual terms are consistent with a contract of employment (Ready Mixed Concrete Ltd v Minister of Pensions). These tests have evolved to address non-traditional work arrangements, such as agency workers and gig economy participants. As further clarified in various decisions and policy guidance, vicarious liability may also extend to relationships “akin” to employment. The factors considered include the degree of involvement in the business, the nature of the remuneration, and which party bears business risks.

In most cases, contractors operating independent businesses are not regarded as employees. However, where workers are functionally involved in the business and the employer controls both the work and how it is performed, courts may characterise the relationship as "akin to employment," bringing it within the reach of vicarious liability (see e.g., Cox v Ministry of Justice).

The second requirement is that a tort has been committed by the individual for whom the employer might be vicariously liable. This includes both negligent and intentional torts, but not acts which fall entirely outside the scope of the tortious causes of action.

The third requirement, in the course of employment, is the principal site of controversy in ‘frolic’ situations. It asks whether the wrongful act falls within the overall field of activities assigned to the employee, and whether the employee was acting for the employer's purposes or had diverged for purely personal reasons.

Where a claimant cannot establish any one of these requirements, vicarious liability will not be imposed.

Deviation from Employment: Minor Detours vs ‘Frolics’

A central issue in vicarious liability is determining whether the employee’s act was done “in the course of employment” or represents a sufficiently substantial deviation—a “frolic of their own”—that breaks the chain of liability.

The law distinguishes:

• Minor detours: Small, incidental deviations from an assigned task (such as stopping for a coffee or fuel on a delivery route). These may be treated as still within the course of employment, so long as the employee remains engaged in the employer’s business, and their acts are reasonably incidental to the discharge of their workplace obligations.
• Frolics: Major, substantial departures undertaken exclusively for the employee’s personal objectives, with no sufficient connection to the employer’s business. In these circumstances, the courts consider the link between the wrongful act and the risk the employer has created as broken; vicarious liability does not generally arise.

Courts consider several factors in distinguishing between minor detours and frolics:

• Purpose at the time of the act: Was the employee still advancing the employer's business, or solely pursuing personal ends?
• Extent of the deviation: Both time and space are considered (e.g., was the employee far off-route and for a significant period, or only slightly off course for a brief time?).
• Return to employment: If the employee has completed a personal act but then resumes their work role, liability may resume from the moment of such “re-entry.”
• Nature of the act: Is the difference rooted in the scope of what the worker was employed to do, or only in the manner of doing it?
• Context and enterprise risk: Was the risk of wrongful conduct one created or materially increased by the business activity for which the employee was employed?

Judicial treatment has consistently recognised that the boundaries between minor detours and frolics are matters of fact and degree, with no strict or single determinative test. Courts emphasise the overall connection of the act to the organisation’s business and the risk it created.

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.

In Storey v Ashton (1869), a wine delivery driver deviated from his route to visit relatives after the end of his workday, resulting in an accident. The court concluded that this departure was so significant as to amount to a new, independent journey—the employee was no longer acting in the course of employment.

Factors in Deviation

Case law illustrates various factors that courts use to distinguish between the two categories:

• An employee remains within the course of employment when their act is reasonably incidental to the employment, even if not expressly authorised.
• If the detour is for a trivial or necessary reason—such as to eat, relieve themselves, or refuel—it will usually be regarded as a minor and permissible detour.
• If the act is for a reason unconnected with the job (a personal social visit, significant personal errand, or substantial time/distance deviation), it is likely to be deemed a ‘frolic.’

This approach has been consistently applied in a range of factual scenarios, including delivery drivers, field staff, and other mobile employees, but also extends to other contexts such as salesperson visits and business travel.

Prohibitions, Scope and Manner

Courts also distinguish between the scope of the employee's duties (what tasks the employee is employed to carry out) and the manner of performance (how the employee is to perform those tasks).

• Acts within the scope of employment, albeit performed in a prohibited or unauthorised way, will often still be within the course of employment.
• By contrast, acts that are entirely outside the employee's job or pursued for purely personal ends, even if done during work time, are likely to be characterised as a frolic.

The effect of employer prohibitions—that is, express instructions forbidding certain conduct—will depend on whether the instruction concerns the manner of performance (how to do the work) or restricts the scope of work (what the employee is employed to do):

• If an employee performs an authorised act in a prohibited manner, courts often find the act within the course of employment, and vicarious liability will attach (see e.g., Century Insurance Co. Ltd v NI Road Transport Board [1942]).
• However, if the act was beyond the scope of the job itself (for example, giving unauthorised lifts to third parties when not employed to carry passengers), the act will generally be deemed outside the course of employment (see Conway v George Wimpey & Co Ltd).

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 or excessive way). The employer is likely to be vicariously liable under the close connection test.

Worked Example 1.4

A milk-round driver is expressly told never to allow children to assist with deliveries. He nonetheless lets a 13-year-old help load bottles while he completes the round. Through the driver’s negligent manoeuvre, the child falls and is injured.

Answer:
The prohibition regulates how the job should be done (manner), but the driver was still performing authorised deliveries (scope). The employer is likely to be vicariously liable.

Worked Example 1.5

A van driver, forbidden to carry unauthorised passengers, gives a lift to a hitchhiker for company. The lift is unrelated to deliveries. The driver negligently crashes, injuring the hitchhiker.

Answer:
The driver acted outside the scope of employment by carrying an unauthorised passenger for personal reasons. The employer is unlikely to be vicariously liable for injury to the hitchhiker.

Judicial Application in Scope vs. Manner

The distinction between acts done within the scope of employment and those outside it remains fact-sensitive, but some principles may be distilled from the authorities:

• Violation of an employer’s instructions about how to do the work (e.g., no smoking while delivering petrol) generally keeps the act within the course of employment.
• Violation of instructions about what to do (e.g., not allowed to carry passengers at all) or about conduct not furthering the employer’s business (e.g., detouring for personal errands) will generally take the act outside the course of employment.

New Contexts: Gig Economy, Agency, and Platform Work

Modern practice has resulted in increased complexity determining vicarious liability where relationships depart from classical patterns. Courts analyse whether the business exerts sufficient control and involvement, and whether the activity was undertaken for the benefit of the enterprise. A driver signed up through a digital platform may be found to be a worker, employee, or genuinely independent contractor, depending on the factual matrix of control, mutuality of obligation, and economic dependence.

In Cox v Ministry of Justice, prisoners working as part of a business fundamental to the operation of the prison (food services) were held to be in a relationship akin to employment, and the prison authority was held vicariously liable for a prisoner's negligence. The policy approach is to ensure liability is allocated to those who are creating or materially increasing the risk through their enterprise and are most likely able to insure against losses.

Travel, Commuting, and Re-entry

Travel frequently raises issues concerning deviation and re-entry to employment. Commuting from home to work and vice versa is generally not in the course of employment (unless the journey itself is part of a contractual obligation or the employee is carrying out work-related activities as part of the journey).

Where an employee is required by the employer to travel from one work site to another or to a client, such journeys are typically within the course of employment. Courts will focus on whether the journey is being made for the business and with the employer’s authority.

If during a business journey the employee embarks on a significant personal detour, liability may be suspended during the detour (a frolic). However, if the employee resumes the original business journey, courts may find that they have “re-entered” the course of employment.

Worked Example 1.6

Two fitters are paid to travel from one site to another during the working day. On the return leg, the driver speeds to get home early and causes an accident.

Answer:
The journey forms part of their employment. Despite negligent driving, they remained within the course of employment. The employer is likely to be vicariously liable.

Worked Example 1.7

A field engineer drives to a client site (within the course of employment), detours three miles off route to collect a personal parcel, then resumes the business route. Minutes after rejoining the usual route, she negligently collides with another car.

Answer:
The collection was a personal detour likely to be a frolic during its execution. Once she had rejoined the business route, she had re-entered the course of employment. The accident after rejoining is likely within the course of employment.

Judicial Approach: The Spectrum of Deviation

Not all deviations take an act out of the course of employment:

• Harvey v O'Dell: brief stops for refreshment or rest on business travel are not frolics.
• Hilton v Thomas Burton (Rhodes) Ltd: employees who drove several miles off-site for a personal purpose during a break were held to be on a frolic.

If an accident happened after a personal detour, courts carefully analyse whether the employee had resumed their business purpose, which reinstates the employer’s liability.

Meal Breaks and Minor Detours

Short, ordinary breaks for meals or refreshments during work are commonly classified as minor detours, and the employer’s liability usually persists unless the break is unusually extended, distant, or for reasons wholly unconnected to the business.

Worked Example 1.8

A courier breaks for lunch one street off her delivery route and, while parking to return to the van, negligently injures a cyclist.

Answer:
A short lunch stop incidental to the route is a minor detour. The employer is likely to be vicariously liable.

Application: Determining Frolic or Minor Detour in Practice

• Amount of deviation in spatial and temporal terms.
• Employee’s subjective purpose and whether it aligns with the employer’s interests.
• Degree of connection to tasks the employee is employed to carry out.

The ‘Close Connection’ Test

In parallel with the course of employment analysis, modern law employs the “close connection” test, especially in cases where the employee commits intentional or criminal acts.

Originating from Lister v Hesley Hall Ltd, the close connection test asks whether the employee’s wrongful conduct was so closely connected with the acts they were authorised to perform that it would be fair and just to hold the employer liable.

The test involves a two-stage inquiry:

• Identify the “field of activities” assigned to the employee (i.e., what duties or functions were the employee engaged in).
• Ascertain whether the tort was so closely connected with these activities that, even if unauthorised or wrongful, it is just to impose vicarious liability.

If the act is merely an unauthorised way of performing an authorised task, vicarious liability often arises. If the act is so divorced from the employer's enterprise as to be purely personal, it will fall outside liability.

The courts are careful not to expand this doctrine to impose strict liability for every act undertaken by staff—there must be a real connection to the tasks or risks typical in the job, not merely a fortuitous employment relationship.

Worked Example 1.9

A supermarket employee whose duties include dealing with customer enquiries and supervising forecourt pumps verbally abuses a customer and moments later follows him to his car and assaults him.

Answer:
The employee’s field of activities included interacting with customers. The assault formed a seamless sequence starting from that work interaction. The employer is likely to be vicariously liable under the close connection test.

The Supreme Court clarified the use of this test in Mohamud v WM Morrison Supermarkets plc, where the assailant was employed to serve customers and his attack was found to be “within the field of activities” assigned by his employer—even though the conduct was violent and unauthorised. The fact that the initial abuse began during a customer interaction and the subsequent attack was a seamless follow-on made the connection sufficiently close.

Application Boundaries

• Personal vendetta: Where an act is motivated purely by personal animosity or for reasons unrelated to any work duty, the connection may be too remote (see Warren v Henleys Ltd).
• Data misuse and privacy breaches: If an employee abuses work access privileges to perpetrate personal mischief (e.g., disclosing confidential information out of spite), the court will consider whether the act was sufficiently connected to assigned responsibilities. If not, the wrongful act may fail the close connection test.
• Independent contractors: For individuals genuinely operating an independent business, vicarious liability will not usually arise unless the relationship is recharacterised as akin to employment.

Enterprise risk is an important principle supporting the decision to impose vicarious liability. If the duties assigned to the employee or the particular setting create or increase the risk of the specific kind of wrongdoing that occurred, and the employer derives benefit from that activity, liability is more likely to attach.

Application of Modern Scenarios

Remote and Hybrid Working

Where an employee working from home interacts with clients or customers in the course of professional duties, the court will assess whether any wrongful act was tied to those activities. Deliberately defamatory or abusive acts entirely unrelated to work, or published in personal capacity, are likely to be seen as a frolic.

Platform/Gig Economy

Labelling is not determinative: Courts examine whether the putative employer exerts control, the worker is part of the business, and whether the employer creates both the profit and risk typical in the engagement. Genuinely independent business arrangements generally place the worker outside vicarious liability.

Workplace Social Events

Physical or verbal violence at work social events may present difficult questions. If the incident arose while exercising managerial authority or in an environment closely linked to the employer’s business (e.g., a manager directly supervising staff at a work-organised party), courts will be more likely to find a close connection.

Data and Privacy Breaches

Where employees misuse data as part of their authorised access but for purely personal or malicious purposes, courts analyse whether the wrongful conduct bears a sufficiently close connection to the employee’s field of activities. If it is a deviation serving only personal motives and unrelated to employer interests, liability is likely to be excluded.

Worked Example 1.10

A customer service agent working from home uses the employer’s CRM system to access a customer’s contact details, then emails those details to a friend as a favour, contrary to strict policy.

Answer:
Accessing the CRM arises from job functions, but disclosure to a friend is a personal act serving no business purpose. Depending on the facts, this may be too remote from the authorised field of activities and amount to a personal frolic. The employer is unlikely to be vicariously liable.

Worked Example 1.11

At a staff party organised by the employer, a manager becomes involved in a disagreement with a subordinate and assaults them, asserting their managerial authority as justification.

Answer:
The assertion of authority and the context may be sufficiently connected to the scope of the employment. If so, the employer may be vicariously liable. Each case turns on whether the facts support a finding that the act was within the employee’s field of activities.

Worked Example 1.12

A ride-hailing platform classifies drivers as self-employed contractors. However, the platform controls fare rates, routes, and work allocation, exerts disciplinary control, and requires branded vehicles. A driver negligently injures a pedestrian while fulfilling a fare.

Answer:
Despite the self-employment label, the degree of involvement, control, and risk allocation points towards a relationship akin to employment. The platform may be vicariously liable.

Policy and Insurance Considerations

Vicarious liability is partly policy-driven. The principle is justified by the idea that the employer is best placed to absorb and distribute the costs of accidents and wrongdoing via insurance, and is in a position to manage and control risks. Courts are careful, however, not to extend liability so far that it becomes strict, no-fault liability for all actions of all staff, regardless of their connection to employment.

When an employer is held vicariously liable and is entirely blameless, indemnification by the employee may be possible under legislation (e.g., the Civil Liability (Contribution) Act 1978) or at common law (as in Lister v Romford Ice & Cold Storage Co Ltd), but courts are reluctant to impose a heavy indemnity burden unless it is just and equitable.

Insurance is a central consideration supporting much of the policy in vicarious liability, given that employers are usually required to maintain liability insurance (e.g., under the Employers' Liability (Compulsory Insurance) Act 1969), and public policy seeks to ensure claimants can obtain compensation.

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.

• Remote and Hybrid work: Misconduct during customer or client communication is more likely within the course of employment than private messages unrelated to the job.
• Platform or gig-style arrangements: Analysis is more searching, considering control, business involvement, and economic reality rather than contractual labels.
• Social events and off-site conduct: The context and the degree to which the event is an extension of the workplace are key.
• Data misuse: Deliberate disclosure or misuse of data arising from employment access, but clearly outside work purposes, may fall outside the close connection required for liability.
• Strict compliance with instructions: Breaching detailed employer policies on data or conduct may not defeat liability if the act is otherwise closely connected to tasks assigned to the worker.

The increasing prevalence of home and hybrid working environments, and the use of digital systems, have created new contexts in which the close connection test and minor detour/frolic distinctions must be rigorously applied.

Additional Examples

Worked Example 1.13

An employee, issued an explicit instruction not to use the company vehicle outside of delivery hours for personal reasons, drives home using the vehicle after shifts and causes an accident.

Answer:
If driving home is not part of the course of employment, the activity is likely to be classified as a frolic. The prohibition bears on scope, not only manner.

Worked Example 1.14

A software developer, permitted remote working, uses employer equipment for personal business during work hours and causes financial harm to a third party.

Answer:
If the acts were wholly personal and unrelated to the scope of duties, the employer is unlikely to be vicariously liable, even if company policy was breached.

Summary Table

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Vicarious liability requires an employment (or akin) 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; substantial personal departures (‘frolics’) break the link.
• Courts distinguish scope of duties (what the employee is employed to do) from manner of performance (how they do it); prohibitions affecting manner do not automatically remove acts from the course of employment, but prohibitions as to scope can.
• Travel context matters: commuting is usually outside employment, but journeys between workplaces are commonly within; after a personal detour, an employee may re-enter the course of employment upon resuming business.
• The close connection test assesses whether the wrongful act is so closely connected with the employee’s field of activities that it is fair and just to impose liability; its limits are seen where acts are personal or involve independent contractors.
• Modern scenarios—remote work, data misuse, work events, gig/platform working—are adjudicated using these core principles.
• Insurance, policy, and enterprise risk considerations support the rationale for vicarious liability and shape outcomes.

Key Terms and Concepts

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