19 Apr 2022
Vicarious liability is a doctrine in English Tort Law, the Doctrine of Vicarious Liability, which imposes an indirect and secondary liability of an employee’s wrongdoing on his employer. An employer will be held liable for a wrongful act or any tort committed by his employee during his employment.
To establish and considered to prove the vicarious liability of the employer, these essential ingredients required to be there is a relationship of employee and employer or supervisor, where the employer is supervising all acts and omissions of his employee in the scope of employment and a wrongful act has committed by the employee while performing his duties or during working hours. The law makes employers vicariously liable for the wrongdoings and negligence on the part of their employees. It is a kind of strict liability on the employer; he does not even need to prove that he has not committed that act. The relationship with his employee is sufficient for making him liable for this liability. The reason behind this doctrine is to compensate the victims because the companies and employers set a budget for compensation usually; it will help the victims get financial compensation to at least some relief in the form of money. An employer will be liable for his employees’ unlawful actions, whether it is harassment or discrimination at the scope of employment. The employer will be liable for his employee’s negligence when an employee negligently or inappropriately operates any equipment and causes damage to a third party’s property or person while performing his duties.
In the principal and agent relationship, a principal appoints an agent to look after his duties and take decisions on his behalf; the principal will be held liable for the agent’s actions relevant to delegated authority by the principal, agreements, and decisions following the theory of agency. The theory of respondeat superior, a Latin term which means, let the master answer. According to this theory, the master is held liable for the servant’s misconduct; if an employee fails to exercise reasonable care and harms or injures a person or his property, the master will be held liable for negligence. In modern times, employers and employees have replaced the terms master and servant.
The corporations, sole proprietorship, and partnerships (employer) would be liable for their agents’ and employees’ actions within their job scope. In the case of an independent contractor and consultants for a specific period and service, the principal who contracts for particular services with a contractor or consultant are not legally considered employees; rather, independent contractors performing work for someone else, the principal/employer would not be held liable for any misconduct of such persons. Also, an employer is not liable for the actions of his employees outside of the scope of work he has authorized them; for example, an employee employs someone for a specific task, and he performs a task outside his duty and damages someone’s property and causes any personal injury for this kind of misconduct the employer will not be held vicariously liable.
If more than one company or individuals are involved or in a relationship with the employee, both employers would be held responsible for any misconduct committed by the same employee; it is known as dual vicarious liability. Dual vicarious liability is established when two parties are responsible for a third party’s actions with the third party being employed or in some legal relation in both of them with the employee. For example, two employers, (A) and (B), retain authority over one individual (employee), a third party (D) enters into a contractual agreement with (A) for some air conditioner instalments in his office, (A) sub-contracts with (B) for this purpose, and (B) had a third party (G) for doing this job, the worker (employee) while performing his duty becomes negligent and which causes damage to the property of (D). The claimant (D) held both (B) and (G) for this negligence on the part of the employee. In this context, both of them will be liable for paying compensation.
Vicarious Liability in the UAE
Article 313.1.b of the UAE Civil Code (Civil Code) enacts that a person may be vicariously liable for its employees’ acts and omissions. The law states that “any person who has actual control, by way of supervision and direction, over a person who has caused the damage, notwithstanding that he may not have had a free choice if the act causing harm was committed by a person subordinate to him in or by reason of the execution of his duty.” To get compensation for the damages caused by an employee, the claimant/injured party is required to prove the three primary elements as mentioned above in the Article and satisfy the court in this respect that the person who had caused harm or injury is under the supervision or control of the employer means to prove the employer-employee relationship, that he is supposed to follow the instructions of the employer while doing his duties, and the wrongdoer has committed the unlawful or negligent act while performing his allocated duties.
The term supervisor is defined in the Civil Code as any person who has actual control by way of supervision and direction; if these conditions are not met, the injured party would not be allowed to claim compensation from the supervisor. This test of control and instructions of the supervisor was applied in 2006 in the Dubai Court of Cassation, where the Honorable Court held that an employee who sexually assaulted a child while he was on his delivery shift (his assigned job), a pizza restaurant was vicariously liable for the actions of its employee. The court held that the delivery man being employed to deliver pizzas, would not have been able to perform the harmful act. As the unlawful act occurred during the scope of the employee’s employment or at the time of his performance of duty, both the employee and the pizza restaurant were held liable.
The Dubai International Financial Centre (DIFC) Employment Law Number 3 of 2012 (the DIFC Employment Law) provides the extent to which an employer shall be vicariously liable for their employees’ unlawful and negligent acts. Furthermore, it states that the employer will be held liable for his employees’ discriminatory behaviour and actions at the workplace. This is relevant to the employees’ remarks and statements on the internet, such as on social media sites, while employed under the employer’s control. To avoid such responsibility, the employer shall have to prove that the unlawful and discriminatory actions performed were not made during the course of employment, and he took reasonable measures to prevent such discriminatory actions. Employers need to be more vigilant and cautious regarding social media and other technologies to prevent their reputations and avoid such potential liabilities.