Abstract
The doctrine of vicarious liability refers to a situation where a person is held responsible for actions of another individual based on the relationship that exists between the two. The doctrine has a number of legal and ethical justifications, but some are outdated and not applicable in the present world.
This essay establishes some of the assumptions in the doctrine including that the employer is the richest in the employer-employee relationship, and hence responsible for any torts committed by the former.
The doctrine has a number of modern day applications with some of the elements being rendered redundant. This paper concludes that the doctrine is an unavoidable one in the current century, as it has led to a number of positive changes.
Introduction
Vicarious responsibility is a doctrine of common law that has been in existence for a number of centuries. Vicarious responsibility refers to a situation whereby an employer is held legally responsible for the actions of his/her employees. The employee is deemed to have committed an offence and in effect, the organization or employer under whom s/he works is held responsible.
Some prominent features of the doctrine are central to its existence, which include that there has to be a tort committed against the plaintiff and at the time that the tort is committed, the employee is under the said employer or supervisor (Neyers, 2005, p. 3). Some of the other features include that an employee may also be held responsible for the tort together with the employer.
Vicarious responsibility has a number of implications both legal and institutional, and these aspects have attracted a number of legal and ethical justifications. The doctrine has also undergone a series of changes over the last number of years (Giliker, 2010).
Therefore, it is applied differently in the modern world. In this research paper, an introduction to the doctrine of vicarious responsibility is made with a focus on the ethical and legal implications under deliberation. The paper also establishes some of the applications of the doctrine in the modern world.
The existence of vicarious responsibility occurs between an employee and an employer, and as Neyers (2005) states, the theory of vicarious responsibility does not apply between employers and their independent contractors, parents, children, or the shareholders. The application of the theory is also not in the relationship that exists between a parent and his/her child or that between supervisors and those beneath them.
The doctrine only applies for the employer for the torts committed only by the legal employees. Some of the reasons for the existence of the doctrine of vicarious responsibility include the assumption that the employer controls the actions of the employees, and thus s/he should be held responsible (Neyers, 2005).
Some critics have tried to argue against the application of vicarious liability based on the presumption that the employer determines what the workers do in the course of their duties. Some of the arguments against this doctrine include that the control over an employee is not sufficient reason to apply vicarious liability since other relationships have no such implications.
Some have even gone ahead and faulted the doctrine with the example of a schoolteacher and her/his pupils or a parent and his/her children, with the conclusion that control is not a good explanation of vicarious liability in the employer-employee relationship (Neyers, 2005).
Ethical and Legal Justifications
There are a number of ethical and legal justifications and implications of vicarious liability between an employer and their employee. Some of the ethical issues in vicarious responsibility include the bearing of punishment for an employer for the torts that are unrelated to them.
In most cases of vicarious liability, the employer is unaware of any misconduct by the employee, and there may not be any mistake committed. Some of the other ethical issues lie in the main reason for the existence of vicarious liability.
Most plaintiffs sue employers with the basic assumption that they are richer than the employees are, and thus they could afford the charges that are likely to be imposed on them (Giliker, 2010). This assumption means that the reason that the plaintiffs sue the employers is for financial gains as opposed to seeking justice.
The assumption is that the actions of the employee are within the control of the employer and that they are directly responsible (Giliker, 2002). One of the ethical issues that arise with this premise is the nature of the assumption.
Employees often have intentional torts that their employers are made responsible for, which is unethical. In most cases, employers have paid fines for actions of their employees that were committed in bad faith.
These actions are not necessarily within the responsibility of the employer, and they cost businesses and organizations large amounts of money in fines. The cases also degrade the reputations of the involved parties, which may need a lot of time and money to win back.
Despite the above issues, some ethical justifications to the existence of vicarious responsibility exist. One is that employers are held responsible for the actions of their employees, and this aspect in turn makes them hold the employees in close supervision. This assertion implies that employees have to work with certain standards, thus ensuring that the quality of services rendered to clients is appropriate.
Another form of ethical justification for the vicarious responsibility is that it allows taking of responsibility for employers, thus preventing legal issues with their employees and clients (Giliker, 2002). Another justification for vicarious liability is that it reduces the number of accidents in the workplace, with the employers having to put in place measures to ensure that accidents do not take place.
Some scholars have stated that the presence of vicarious responsibility is important in regulating some industries, with the most important of these being the service industry (Giliker, 2010).
Employees get warnings on any unethical behaviour and are served with terms of employment, and organizations in which they work has to put in place punitive measures to ensure that employees respect these regulations. In the health industry, for example, medical practitioners have to ensure that the employees under them respect the ethical code of conduct to avoid any legal implications in the case of negligence.
Vicarious liability has also enabled the reduction of negligence in workplaces, with employers having to reduce the number of incidents that happen under their watch. The implication here is that employers have to abide strictly to the set industry rules, embark on the regular training of their employees, and choose those that are competent in the line of duty.
These measures have ensured efficiency in the concerned industries in addition to preventing any legal implications in terms of vicarious liability. Some of the legal justifications of the vicarious liability include the generation of laws that are used in the processing of various legal cases related to the running of organizations.
Over the past few years, there have been a number of high profile cases involving vicarious liability, which have affected the outcomes of cases that followed and their judgments. These rulings have been important in the formulation of policy in the respective industries, thus making the working environment much safer and efficient.
Employers are held responsible for the actions of the employees since they are required to train them on the basic requirements before they join the job market. Another legal justification is that the law has to hold institutions responsible
Application in the modern world
Vicarious liability has a number of applications in the modern world, which have not changed for several decades. As Mclvor (2006) states, the determination of when a tort has been committed is one of the major functions of industrial courts.
Therefore, the doctrine of vicarious liability ensures that there is taking of responsibility in the industrial courts, thus making it easier to identify the aggrieved parties and those to pay for the damages. Another application of vicarious liability is the maintenance of law and order in different sectors.
Since employers are aware of the consequences of vicarious liability, they train their employees on how to avoid it through adequate training, selection, and provision of the basic minimum working conditions.
For employees, vicarious liability is not as safe for them as perceived. Most employees are warned of any vicarious liability that organizations may encounter in their hands, which means that they have to use caution in their interaction with clients.
This move has led to improved service delivery with companies producing a better output compared to earlier years (McIvor, 2006). Companies keep track of the performance of the companies through the mechanisms that have been set in place to avoid cases arising from vicarious responsibility.
The doctrine has also a number of applications in the modern courtroom with the legal system respecting its existence. A number of rulings on the same have also ensured that the parties are given a fair ruling. These rulings have been a landmark with the outcomes being used as a basis for the next rulings.
One of the principles of the existence of vicarious liability is the assumption that the employer is rich, and thus can cater for the charges that are awarded against the organizations. This aspect has acted as deterrence for employees and employers, thus preventing some of the torts that were common before the introduction of the principle (Giliker, 2010).
Another way in which the doctrine is applied today includes the guaranteeing of responsibility where torts are committed in an organization by people who may not be necessarily known. Before the introduction of the doctrine, organizations could hide in the ability of the afflicted parties to establish employees that were responsible for the torts committed.
Therefore, it would be difficult to establish the right culprits or punishment. With the introduction of vicarious liability, clients can single out the organizations that were involved and this aspect has created responsible organizations (Giliker, 2002).
Another way in which vicarious liability is important in organizational management is the creation of working relationship between the employee and the employer. Employers have integrated themselves in the daily lives of the employees by ensuring that they have an enabling working environment and are in a position to deliver.
The above measures mean that the employer-employee relationship has improved over the last few years, with a portion of the success being attributable to the doctrine.
However, some of the modern applications of the ethical and legal justifications of vicarious liability are not applicable in the present world. The assumption that the employer is the richest party in cases against clients may not be applicable, as some organizations are not as wealthy as the clients in the tort may purport them to be. Some may even be bankrupt and unable to afford the required fines.
The assumption has also led to the emergence of a new type of clients that engage in vicarious liability to benefit financially. Therefore, they set out to make employees commit certain torts out of will to achieve their motives of compensation.
Over the years, there have been a number of court cases where the plaintiff was involved in the committing of a crime to benefit financially without any damages being found. Organizations have lost valuable money to these kinds of tricksters and some have ended up being sued by the organizations for defamation.
In some of the instances, the decision is reversed where the employer is found to have no responsibility in the committing of the tort, especially where the mandate of the employee was not within the limits of the organization.
Another way in which the legal and ethical justification for the vicarious liability applies is the manner in which organizations can raise money and declare their wealth. Over the past decades, organizations could hold a large number of assets and finances without the knowledge of the public (Giliker, 2010). With the introduction of vicarious liability, many organizations are cautious to announce and publish their financial resources.
This element works as a tactic for discouraging any of the clients who may be interested in making claims based on vicarious liability. Some of the other applications of vicarious liability include the definition of roles in organizations.
In the current organizational structure, employees have specifically defined roles, which they are required to play in the companies, and these form the avenues within which vicarious liability is applicable. Therefore, employers have ensured that the roles of employees are specially defined to avoid litigations or any other legal implications as applied in vicarious liability (Grubb, 2004).
The application of vicarious liability is not new in organizations and for centuries, there has been an existence of a contract between the employee and the employer where the employer is held responsible for the actions of the employees. However, the doctrine has been adopted in the legal system, allowing the observed changes.
Conclusion
Vicarious liability has a number of applications in cases whereby an individual is made responsible for the crimes committed by another. The doctrine has mainly been applicable in organizations with over a century in the legal system. The origin is not clear to many researchers, but the doctrine serves to ensure the bearing of responsibility for actions committed within the organizational ranks.
The existence of the doctrine draws a number of ethical and legal justifications, and they include the desire to have people take responsibility for the actions of their subordinates in organizations.
The legal justifications underscore the view that the employees’ actions are directly linked to employers, and that the two are equally responsible. However, presumably, the employer is the richer of the two, and thus can afford to pay for the fines and the areas of the torts in a court of law.
Some of the modern applications of the doctrine have been described in the essay, and the most evident result is the improvement in service delivery in organizations.
References
Giliker, P. (2002). Rough Justice in an Unjust World. Modern Law Review, 65(3), 269-271.
Giliker, P. (2010). Vicarious liability in tort: A comparative perspective. New York, NY: Cambridge University Press.
Grubb, A. (2004). Principles of Medical Law. Oxford, UK: Oxford University Press.
McIvor, C. (2006).The use and abuse of the doctrine of vicarious liability. Common Law World Review, 4(2), 268-296.
Neyers, J. (2005). A theory of vicarious liability. Alberta Law Review, 43(2), 1-41.