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As stated by Westrick and Dempski (2000), legal systems and ethical codes mirror the values that people within a society have and provide the guidelines for the development of appropriate behaviors. Ethics and law continually interact with each other and affect decision making in various spheres of life. Legal duties bind employers and employees and enforce them to behave according to major ethical principles.
The doctrine of vicarious liability serves as the example of this type of interactions between the law and ethics. It is “the liability of the employer for the negligent acts of the employee in the course of his or her employment” (Westrick & Dempski, 2000, p. 5). Overall, it means that an employer is accountable for the wrongful or negligent torts of his/her subordinates when they are fulfilling prescribed work responsibilities and roles. Researchers and legal practitioners distinguish many ethical-legal explanations for the given rule. Some of them are analyzed in the following paragraphs.
Vicarious Liability and Corporate Social Responsibility
It is possible to say the doctrine of vicarious liability is commonly regarded as the cost of doing business and is rooted in the theory of social responsibility. It means that the given legal rule reflects the expectations of the general public regarding the extent to which employers should be held responsible for establishing and communicating ethical and professional standards in the workplace, considering stakeholders’ interests and needs, and sustaining sound work environment that would support well-being of employees and customers (Garriga & Melé, 2004).
To start with, there always a risk that employees in different organizations may harm or injure third parties. The intensity of these risks largely depends on the type of the industry in which a particular firm operates. It is implied that by hiring workers in order to multiply financial benefits, an employer increases the risks of harming customers, clients, and other third-party individuals or organizations through subordinates’ negligence, assault, etc. The emphasis in this rationale is made on employers’ responsibilities which they undertake when requiring other people to work for them. Since employers gain most of the benefits as a result of various organizational operations, it thus would be unethical to impose liability only on individual employees who were convicted of wrongdoing and caused harm to anyone during the course of employment (Ahirwar, 2011).
According to Thornton (2010), in the employer-subordinate relationships, an employer usually has the right of control over the actions and behaviors of employees. Employers may dictate what types of actions employees should perform and what manner of work they should have. Moreover, companies require their subordinates to have particular qualities needed to perform professional tasks well and meet all standards of business conduct. Thus, it is expected that employers will select, educate, and supervise human resources with great care in order to enforce high-quality professional behavior within organizations and minimize the risks of harm to third parties. In this way, an individual employee (wrongdoer) may be “absolved of any legal suits while responsibility is brought to bear on the person, employer or institution who failed to enforce that duty” (Appiah-Agyekum & Kayi, 2013, p. 0).
As stated by Banerjee (2015), the practice of vicarious liability dates back to the medieval ages when the intense industrial and commercial development have commenced, and the first monopolistic businesses emerged. At that time, employers’ liability was limited to unlawful actions of their subordinates. The employment rationale for the rule implementation is valid today as well. However, it is amended to fit new business circumstances. For example, in JGE v. The Trustees of the Portsmouth Roman Catholic Diocesan Trust, the UK court held that the Bishop of the PRCDT was liable for the wrongful deeds of the priest who worked in the organization although he (the priest) was not officially employed (Banerjee, 2015). The significant attention is given to the idea of the course of employment, i.e., a particular period of the day throughout which an employee performs his or her duties. In the case, the priest committed the wrongful actions while he was working in the trust. As a result, the head of the organization was the one to blame.
Vicarious liability is applied to all misdeeds which organizational subordinates do throughout the workday. When employees commit a crime outside the scope of employment, they are open for individual liability. Westrick and Dempski (2000) claim that, traditionally, organizations are not responsible for the acts of independent contractors because they are regarded as separate enterprises. However, the mentioned recent legal case indicates that, in particular situations, considering the time and location of the wrongful act commitment, employers can be vicariously liable for the behavior of independent contractors as well. It can be explained by the theory if apparent authority. According to this theoretic approach, the basis for holding an employer vicariously reliable for the torts by an independent contractor is the belief that he or she (the employer) has arranged the work of the contractor in a way that the contractor may be considered one of the employees (Thornton, 2010). That is to say that if an employer maintains his authority over the performance of an independent contractor and influences his or her decisions and actions in a particular way, the rule can be applied.
The “Deeper Pockets” Basis
Along with the employment rationale, the exercise of the rule of vicarious liability is also frequently justified by the idea that employers are better capable to compensate the damages made to the victim than employees because they usually have more financial resources. As mentioned by Giliker (2010), this explanation is primarily based on public concerns for social justice and pragmatism. When a person falls victim to a tort committed by an employee who has not the resources to compensate the damage, there is the risk that the victim will not be compensated at all. Therefore, it may be logical to held an employer vicariously liable to guarantee the just treatment of the injured person.
Although it is considered that employers have more means to fulfill a plaintiff’s payment claims, this explanation of vicarious liability does not necessarily suits the present-day situation. Neyers (2005) observes that this rationale is rather flawed because it does not persuasively explain why the compensation cannot come from any other source (e.g., government) instead of the employers’ pockets, eliminates the distinction between employees and contractors (because both independent contractors and officially employed individuals will be less wealthy than an employer in most of the cases), and does not explain “why the plaintiff must have suffered a tort at the hands of the employee or why this tort must have been committed in the course of employment” (p. 7).
As it was mentioned above, the central requirements of the doctrine of vicarious liability are the commitment of wrongful actions by an employee and the fact of his/her employment by an organization. Moreover, the illegal action must be made during the course of employment. However, the “deeper pockets” concept does not explain these basic doctrinal requirements. Therefore, it is not sufficient to rationalize the rule.
It is possible to say that the principal purpose of the doctrine of vicarious liability is the attainment of just remedy for a plaintiff. It aims to resolve the conflicts of interest between a victim and a defendant. But, at the same time, the legal and ethical implications of the doctrine not always merge well because it is not entirely just to impose the no-fault liability on employers no matter how wealthy they are in comparison to their employees. To resolve the potential conflicts between the legal and ethical considerations, each case should be investigated subjectively, and the imposition of the vicarious liability must depend on the overall scenario and circumstances of a case.
Several justifications for the doctrine are distinguished in the literature including those referred to the idea of social responsibility and the “deeper pocket” concept. However, the analysis revealed that the employment rationale might explain the doctrine more efficiently than the idea of “deeper pockets” because it is directly related to the major doctrinal requirements: a tort committed by an employee, the course employment, and relationships between an employer and an employee. In this way, it is possible to conclude that the employment rationalization of the doctrine of vicarious liability sufficiently explains it and suits the current business situations.
Ahirwar, S. P. (2011). Justification of vicarious liability. The Lex Warrier. Web.
Appiah-Agyekum, N. N., & Kayi, E. A. (2013). Knowledge and awareness of vicarious liability: Views of healthcare workers in Ghana. Online Journal of Health Ethics, 9(1), 0-25.
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Banerjee, A. (2015). Vicarious liability. Ethics and social responsibility. Munich, Germany: Grin.
Garriga, E., & Melé, D. (2004). Corporate Social Responsibility Theories: Mapping the Territory. Journal of Business Ethics, 53(1/2), 51-71. doi:10.1023/b:busi.0000039399.90587.34
Giliker, P. (2010). Vicarious liability in tort: A comparative perspective. Cambridge: Cambridge University Press.
Neyers, J. W. (2005). A theory of vicarious liability. Alberta Law Review, 43(2), 1-41.
Thornton, R. G. (2010). Responsibility for the acts of others. Proceedings (Baylor University. Medical Center), 23(3), 313–315.
Westrick, S. J., & Dempski, K. (2000). Legal and ethical issues. Thorofare, NJ: SLACK Inc.