Vicarious liability is one of the few remaining areas where civil liability can attach without ‘fault’ on the part of a defendant, with organisations fixed with liability for the negligent acts of their employees.
With the continued expansion of vicarious liability beyond traditional employment relationships, new risks are being created for local authorities as they navigate outsourced services and community-based care.
Organisations should carefully structure their relationships, properly document their arrangements, and ensure they understand where vicarious liability may arise in an increasingly complex landscape of service delivery.
Risk mangers play a crucial role by informing decision-making and educating organisations on the potential implications of service delivery models.
The legal framework: A two-stage test
The well-established two-stage test for vicarious liability requires: (1) a relationship of employment or one akin to employment between the defendant and individual committing the negligent act; and (2) that the conduct was sufficiently closely connected to the acts the employee was authorised to perform, that it can fairly and properly be seen as acting in the course of employment (or quasi-employment).
While this framework appears clearly defined, it remains an area of considerable scrutiny and attempts to broaden the scope continue.
Stage 1: The expanding boundaries of ‘akin to employment’
The first stage of the test has seen significant expansion beyond traditional employer-employee relationships.
In Cox v Ministry of Justice, [2016] UKSC 10, a prisoner engaged in kitchen work was found to be in a relationship akin to employment where, (i) the prison service created the risk of the act being committed by assigning tasks, (ii) the prisoner was under the control of the MOJ, and (iii) the work relieved the prison service from engaging employees at market rates.
The decision applies directly to many public sector organisations who rely on support from outside of its traditional workforce.
The independent contractor distinction
The recent case of J D Wetherspoon Plc v Burger & Risk Solutions BG Ltd [2025] EWHC 1259 (KB) does however reinforce the crucial distinction between true independent contractors and deemed employees.
On appeal, it was held that while the wrongful conduct (a serious assault by door staff against a customer) was sufficiently closely connected with authorised activities, the facts did not support a relationship ‘akin to employment’. Significantly, neither did the commercial arrangement. This was a contract for the provision of specialist services, not a contract of service.
Stage 2: The close connection test
The close connection test requires more than mere opportunity to commit the wrongful act.
In Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15, the Supreme Court determined that the organisation was not vicariously liable for sexual assault perpetrated by one of its elders. The assault occurred in the elder's home while the victim was providing him with emotional support, rather than during the performance of his authorised duties.
In contrast, in Mohamud v WM Morrisons Supermarkets [2016] UKSC 11, an employee who verbally abused and then physically attacked a customer remained within the scope of activities assigned to him. Dealing with customers and addressing their queries formed part of his employment duties, and his actions constituted an unbroken sequence of events.
Kinship care: an expansion of risk
A significant development for local authorities was the Court of Appeal decision in DJ v Barnsley [2024] EWCA Civ 841, which extended the scope of vicarious liability to kinship foster carers.
It was found that once an aunt and uncle accepted their nephew into their care and had been approved as kinship foster carers, their care was integral to the local authority's business of discharging its statutory duties. This made it possible that the uncle might render the local authority vicariously liable for alleged sexual assaults.
While the judgment was fact-specific, the sequence of events was not unusual - social workers asked an aunt and her husband to care for their nephew on a voluntary basis, and after several months the arrangement was formalised. The judgment has potentially wide-ranging implications.
Future risks and mitigation
As public sector delivery of essential services to communities continues to evolve, there is increased exposure to findings of vicarious liability:
- Outsourcing of services. As local authorities increasingly outsource functions to third-party providers, the JD Wetherspoons decision highlights the critical importance of getting contractual associations right. Ensure that outsourcing arrangements are properly structured and documented to reflect genuine independent contractor relationships.
- Expansion of kinship and connected person care. It has long been accepted that those best able to care for children whose parents are unable to do so are other relatives or adults with a close connection to the child. With the first kindship care strategy launched in England in 2023, careful consideration must be given to the nature of fostering arrangements, with robust supervision and vetting processes.
- Child sexual exploitation by third parties. We may well see an increase in claims where an argument is advanced that a foster carer or other person in an ‘akin to employment’ relationship was negligent in failing to prevent child sexual exploitation by third parties, and the authority has vicarious liability for that negligence. This would represent a significant expansion of the current principles and seems destined to be challenged in the higher courts if pursued.
- Integrated neighbourhood services: The policy shift towards people staying at home or in family settings, supported by neighbourhood hubs and integrated services, will likely involve a wider range of individuals and organisations in care delivery. Each new relationship and service model will need careful analysis to determine whether it creates an employment relationship and whether there is sufficient connection between the role and any wrongdoing for it to be captured by vicarious liability.
