Can an employer be liable for the conduct of a person working for an independent contractor who, under a commercial contract, is providing services to the employer?
Under common law, an employer can be vicariously liable for the wrongful tortious acts or omissions of their employees that occur in the course of their employment, where the employer is in a position of control over their employee's conduct so as to take reasonable measures to prevent such behaviour.
With vicarious liability, there is a two-limb legal test, namely that there is a particular kind of relationship existing between the two parties (an employer and employee relationship, or something akin to that), and the person's unlawful conduct must be closely connected with their employment (or quasi-employment, i.e. a position akin to employment) and the conduct was authorised by the employer.
Vicarious liability on the part of an employer will turn on its own facts. For example, in the case of Various Claimants v Wm Morrison Supermarkets plc, the Supreme Court held that the employer was not liable for the criminal behaviour of its employee, who copied the personal data of approximately 100,000 employees onto a USB stick, took it home and uploaded it to a publicly accessible website, as the employee was pursuing a personal vendetta against his employer.
In another case, Mohamud v Wm Morrison Supermarkets plc [2016], a petrol station employee shouted at a customer, followed him onto the forecourt and assaulted him. The court decided that the employee's conduct was closely connected with his employment, as it began while the employee was serving the customer.
In a situation where a person's services are provided by an independent contractor, there is the decision in Hawley v Luminar Leisure Ltd [2006], where a member of the public was assaulted by door staff who had been engaged by Luminar, a nightclub owner. As Luminar's night manager had been directing, supervising and instructing the door staff, together with the fact that the doormen were wearing Luminar uniforms, it was decided that Luminar was vicariously liable for the actions of the door staff.
Despite the above decision, the Court of Appeal's recent judgment in Burger v Risk Solutions BG Ltd & J D Wetherspoon plc [2026] EWCA Civ 804 highlighted the limitations of vicarious liability and made it clear that it would not apply to the unlawful acts of a genuine independent contractor's personnel. Accordingly, the two-limb test would not apply.
In that case, Mr Burger sustained serious injuries following an assault by two door staff outside a J D Wetherspoon ("JDW") public house. The door staff were employed by Risk Solutions BG Ltd ("RS"), which had been contracted by JDW to provide security services.
The Court of Appeal concluded that RS was an independent commercial organisation that supplied its services to third-party customers, recruited and employed its own staff, provided them with uniforms and appropriate training for their roles, and entered into commercial contracts with customers such as JDW, accepting contractual responsibility for the conduct of its employees. The Court also emphasised that the decision in Hawley, referred to above, was an exceptional case and not the general principle of the law when outsourcing such arrangements.
This article is for informational and educational purposes only and should not be relied upon as legal advice. If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team on 01455 852 028.
