Liability for employees’ actions outside the workplace

Did you know that in certain circumstances, as an employer, you can be held vicariously liable for your employee's action or conduct outside of work hours?

   

Vicarious liability is the responsibility you have for the actions of your employees and workers towards others during work hours or in other work related circumstances. If your employee/workers’ actions are found to be unlawful, both you and the employee/ worker who behaved inappropriately may be held responsible.

For example, here are a number of ways you can be held liable for your employees’ actions out of work hours:

• Under OHS law. Even at out of hours’ work functions, the employer still has a responsibility to abide by their obligations under OH &S legislation. Hence you are still required to provide a safe environment for your employees and guests, even away from the workplace and outside of normal working hours. Under existing State health and safety legislation, the employer is liable for all workers while they are carrying out work, wherever that may be.

• Under Work Cover legislation. If an employee suffers an injury at a work-related function out of normal working hours, they may still be able to claim under your workers’ compensation insurance.

• Under Discrimination legislation. If an employee engages in sexual harassment or some other form of misconduct/undesirable behaviour in a situation connected to their employment, such as an office Christmas party, you could be held vicariously liable under anti-discrimination legislation, if you have not taken reasonable steps to prevent the conduct

• Under Privacy laws. If an employee accesses records of personal information stored at the workplace after work hours, any breaches of privacy laws will be taken to have been engaged in by your company if the conduct of the employee was within the scope of their authority given to them by your company; and if your company did not take reasonable precautions or exercise due diligence to avoid the conduct.

However, there are several steps your business can implement to help prevent being found to be vicariously liable for an employees’ out of hours behaviour:

1. Check your current OH&S and Anti-Discrimination and Privacy policies and ensure they are up to date, and amend if required.
2. Ensure your employees have a good understanding of exactly when workplace behaviour rules will apply outside the usual workplace or working hours, and ensure that they are aware of their responsibilities as an employee representing your company during out of office hours.
3. Understand your obligations under your Workers Compensation Insurance policies.
4. Ensure your employees understand the guidelines on accessing personal information in the workplace during and after working hours.
5. Ensure that you train employees about the policies and the procedures you have in place, and their obligations.
6. Apply your policies consistently through appropriate disciplinary action.

If you take these steps, you will be able to establish that you took reasonable precautions to prevent misconduct – and you should not be held vicariously liable for it.

In many circumstances the fines for non-compliance are significant. To minimize your risk as an employer, you should consider developing proactive compliance policies that will reduce the risk of fines, and have the added benefit of ensuring that your workforce is safe, engaged and productive. Contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies for your business.