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What Is Vicarious Liability? 2025 Update

7 October 2025

Vicarious liability is an important legal principle that allows an individual to pursue an employer for the wrongful actions of an employee.

A two-stage test can be used to assess whether vicarious liability applies in a specific case. Firstly, there is a requirement for the wrongful action to have been committed in the course or scope of the employee’s employment. Secondly, the wrongful action must be closely connected with the employee’s authorised employment activity, to the extent that it would be considered just and fair to hold the employer accountable.

The Case of Mohamud v WM Morrison Supermarkets PLC

The case of Mohamud v WM Morrison Supermarkets PLC (2016) UKSC11 established that even incidents of physical violence committed during employment could be considered as wrongful actions within the sphere of an employee’s ordinary duties. In this case, the employee was deemed never to have taken off his uniform (metaphorically speaking) whilst committing a physical assault. Accordingly, Morrisons was held to be vicariously liable for the employee’s actions and made to pay damages to the claimant.

English courts have adopted this two-stage approach when considering vicarious liability, making employers somewhat fearful of their potential liability obligations, particularly when employees act in an unsanctioned and unpredictable manner.

Recent Cases of Vicarious Liability

The principles of vicarious liability have been further developed by the recent case of JD Wetherspoon PLC -v- Burger and another company [2025] EWHC 1259 (KB), specifically when it comes to a triangular employer-contractor-employee relationship.

In August 2018, Mr Burger was injured by door security staff after attempting to gain entry into the Wetherspoons pub in Guildford. Mr Burger suffered serious injuries to his hip whilst being restrained and decided to sue both JD Wetherspoons PLC and Risk Solutions BG Limited, the company providing the door security staff.

Default judgement was entered against Risk Solutions as the company failed to respond to the claim, so the matter progressed against Wetherspoons alone.

Crucially, a contract was in existence between Risk Solutions and Wetherspoons stating that the door staff remained under Risk Solutions’ control and employment.

At first instance the recorder judge held that, despite the existence of the contract, because Wetherspoons and Risk Solution’s operations were so closely connected, with Wetherspoons dictating the door staff’s uniform requirements and making them part of an established team, the door staff were effectively employees of Wetherspoons. Accordingly, Wetherspoons was held vicariously liable for the wrongful actions of the door staff and ordered to pay compensation to Mr Burger.

Counsel Johnathan Payne of Deka Chambers represented Wetherspoons at appeal. At the hearing, Mr Justice Sweeting noted the recorder judge had considered the contract as one of a number of features rather than focusing more closely on the content, which in his view should have been the correct starting point. The contract stipulated that the provision of door staff was by an independent third party (Risk Solutions) and as such was a contract for services rather than a contract of service. The recorder judge had therefore erred in law for not basing his decision on a straightforward contractual basis. In consequence, Wetherspoons was let off the hook and found not to be vicariously liable to Mr Burger for his injuries.

This case is important as it clarifies that whilst unsanctioned conduct on behalf of an employee may still result in a finding of vicarious liability against an employer, where a contract for services exists the claim could be redirected towards another party. Certainly, in the Wetherspoons v Burger case there is little doubt that without the contract Wetherspoons would have been found vicariously liable for the door staff’s wrongful actions.

If you would like further information, please contact Rachel Strange on 01243 786668 or at rachel.strange@georgeide.co.uk