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UpdatesOct 14, 2014

How to avoid vicarious liability

As an employer, you can be held responsible if an employee or contractor engages in unlawful discrimination, harassment or bullying. This is called vicarious liability.

By Charles Power

As an employer, you can be held responsible if an employee or contractor engages in unlawful discrimination, harassment or bullying. This is called vicarious liability.

You will be vicariously liable if the offender is your employee or contractor and:

You will not be liable if the offender is:

Vicarious liability can arise even if the conduct occurred out of hours and not in the course of the employee’s or contractor’s work, as long as there is enough of a connection to your workplace or business, e.g. an employee uses social media to badmouth your business or to bully a co-worker.

Fortunately, there are steps you can take to avoid being vicariously liable.

How you can avoid being found liable for your employees’ misconduct

To avoid being vicariously liable for your employees’ or contractors’ misconduct, you must have:

Implementing policies and procedures to avoid vicarious liability

The bare minimum is a written policy with processes to show the implementation of that policy. Your policy should include:

Ensure that complaints and reports are acted upon and resolved promptly, fairly and effectively, and that the policy is applied consistently through appropriate disciplinary action.

To ensure all your employees have a complete understanding of the policy and processes, you should:

You should also ensure that your policies and processes are kept up-to-date with legislation, and conduct updated training when necessary.

How can you avoid vicarious liability for out of hours conduct?

To avoid being vicariously liable for your employees’ out of hours conduct, in addition to the above, you should make it clear to your employees exactly when workplace behaviour rules will apply outside the usual workplace or working hours.

To avoid liability associated with employees’ social media conduct, you should also have a comprehensive and up-to-date social media policy.

Regards,

Charles Power
Editor-in-Chief

Employment Law Practical Handbook

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