Vicarious liability and assaults by employees: a more level playing field?

A recent High Court decision considered the extent of employer’s liability when staff assault each other – and supported a pragmatic, common-sense approach. Alastair Gillespie of Hill Dickinson LLP considers the vexed issue of vicarious liability in the context of a recent case involving alleged historical assaults of apprentices by professional footballers.

Over the last 15 years employers have found themselves increasingly affected by the relentless extension of the doctrine of vicarious liability and being found liable for the acts or omissions of their employees in ever-widening circumstances. In many cases, public policy considerations have resulted in the courts effectively imposing a form of strict liability upon employers in order to compensate the injured claimant. However, in a number of recent decisions the courts have seemed more reluctant to continue this trend, and we are now seeing clear judicial efforts to control the spread of vicarious liability. The recent decision in GB v Stoke City FC (1) Peter Fox (2) is a case in point.

The claimant was an apprentice at Stoke in the late 1980s. He alleged that on two occasions he was physically assaulted by the first team goalkeeper in the form of a punishment ritual known as ‘gloving’, administered by the professionals for misdemeanours. In this case, the claimant was punished for (a) giving an incorrect decision while acting as linesman in a practice match and (b) providing insufficiently hot tea to the professionals. Was the Club liable, as employer, for the assaults of one employee by another?

In common with the vast majority of work environments, there was a hierarchical system at the Club with professionals perceived to be more senior than the apprentices. In coming to a decision the court analysed the relationship between the two employees. The professionals were employed by the Club to train and play football to the best of their ability. However, they had not been given any express or implied contractual authority to train, discipline or chastise the apprentices. The Club employed a youth team manager who directed the apprentices to perform their duties and administer any discipline. It was no doubt the case (and indeed will always be at any football club) that the apprentices may have looked upon the professionals as role models. This did not mean that the Club had conferred power over the apprentices to the professionals.

An important question also arose as to whether the Club had created or enhanced the risk of this sort of behaviour because, in the course of conducting its business, it had facilitated interaction between the different levels of employee, whether on the training ground or in the changing rooms. Sensibly, the court accepted that human interaction always carries the risk of friction or confrontation between different classes of employee. That is no different from any other workplace. On this analysis, the court found that if vicarious liability did apply then it would mean that most, if not all, apprentices or trainees in all workplaces, not just sporting organisations, would be at theoretical risk. In effect, this would fall little short of holding that any employer could be vicariously liable for any assault committed by any employee in the workplace. This ultimately was a step too far and, although the assaults were ultimately not proved, even if they had been, the Club would not have been vicariously liable for them.

This is a welcome judgment for all employers. A finding of vicarious liability in these circumstances could have affected not only sporting clubs but, in theory, any organisation with a hierarchy of employees. It is another very helpful decision which should give employers confidence that the courts are adopting a more robust approach to this fundamental liability principle and it is hoped that the pending Supreme Court decision in Mohamud –v- Morrison Supermarkets will reinforce this trend.

Alastair Gillespie is Head of Abuse and Social Care at Hill Dickinson. He represented one of the defendants, Stoke City FC.

Alastair Gillespie - Hill Dickinson