Employers will know that they can be vicariously liable for the wrongdoing of employees where the wrongdoing occurs ‘in the course of their employment’. A good example of this occurred in 2001 when an employer who owned a boarding house for children was held vicariously liable for the wardens’ sexual abuse of children. The House of Lords ruled that the words ‘in the course of employment’ should be interpreted widely, leading to the question of whether the employee’s conduct is connected closely enough to the employment to make it fair and just that the employer should be liable. The fact that that employment provides the employer with an opportunity for wrongdoing does not constitute ‘in the course of employment’.

In a more recent case, the Court of Appeal held that an employer was vicariously liable for the theft of a third party’s goods (15 silver bars) by one of its employees. The company in question had a contract to transport a container of over 600 bars of silver to India. The container needed to be fumigated and was taken to a terminal where two employees of a different company opened the container, carried out the fumigation and re-sealed it. It was one of these two employees who later returned and stole 15 silver bars.

His employer argued that this employee was simply provided with access to the container; he had left the site and returned later to carry out the theft and this was an act wholly unconnected with his employment. However, the Court of Appeal decided that because the company and its employees were authorised to enter the container and deal with its contents during the fumigation process, the theft from the container was a risk incidental to the purposes for which he was employed. It therefore held that there was sufficiently close connection for the company to be held vicariously liable for the employee’s actions. This decision may seem unfair but it serves as a warning to employers that even where an employee appears to be on a frolic of his own he might still be considered to be acting in the course of his employment.