Employment Law Persuasive

The starting point in this essay is to examine whether an employer is under a duty to discover whether an employee has a criminal record before employing them or whether there it is the responsibility of the prospective employee to disclose this information[1]. There is also the issue of vicarious liability as employer’s are vicariously liable for the actions of their employees.

 Staring with the issue of disclosure, under the Safeguarding Vulnerable Groups Act 2006 an employer has a duty to check the criminal record of any prospective employee if they are to be employed where the work may involve working with children[2] or vulnerable groups[3]. Given that the company is renting out apartments where the occupants might be vulnerable adults or might have children living with them it could be argued that this kind of employment falls within the scope of the Act. This would mean that the company could therefore be held liable for the incident.

It could be argued that the employer has a responsibility to check the criminal record of prospective employees, however the Data Protection Act 1998 s56 states:

• A person must not, in connection with;
• the recruitment of another person as an employee;
• the continued employment of another person;
• any contract for the provision of services to him by another person;
• require that other person or a third party to supply him with a relevant record or to produce a relevant record to him.

In essence this means that unless the type of employment is one were standard disclosure or enhanced disclosure is required that the employer cannot insist on the employee disclosing any previous convictions. As with the Safeguarding Vulnerable Groups Act 2006 standard disclosure is only usually available where the employment is likely to involve direct contact with children or vulnerable adults. Enhanced disclosure is for occupations where the degree of contact with such groups is likely to be a lot higher.

Under the Rehabilitation of Offenders Act 1974 there are certain professions where the prospective employee has a duty to disclose convictions even those that are spent convictions. These occupations include a medical practitioner[4], a barrister[5], an accountant, a dentist a veterinary surgeon, a nurse[6] or midwife, a police officer[7], prison workers, probation officers[8], health service employees, local authority employees in social services[9], teachers[10] or other occupations involving for caring for people under 18.

It would appear in this instance that unless the claimant can show that there is a strong possibility that the manager may well be working in the company of vulnerable adults or children that the manager would not be under a duty to disclose his previous convictions. This would mean that the company could not be held liable for failing to check whether the manager had such convictions before employing him. The Criminal Records Bureau[11] that was established in 2001 allows an employer to check the criminal record of a prospective employee before employing him; however the employer has to show that the employee is likely to be working with children or vulnerable adults.

If the manager had been convicted of a sexual offence before it is likely that he would have been required to register on the Sex Offenders’ Register[12], but as there is not open public access to this register in the UK the employer would only be able to discover this conviction if the employee choose to reveal it. It would seem likely from the above that in this instance the claimant would have to rely on vicarious liability in order to pursue a claim against the company.

Under the rules of vicarious liability an employer is only liable for the acts of their employees when they are acting in the course of their duties[13]. If it was the duty of the manager to regularly enter the apartments to check on the condition in which they were being maintained then the company might find itself liable for the actions of the manager[14].

In this particular case the claimant may well have difficulty in pursuing an action against the employer as it is stated that on the day of the rape the manager was not actually working. This would mean that the employer could counter the argument of the claimant in respect of liability on the grounds that at the time of the offence the employee was not working for the company[15].

In the case of N v Chief Constable of Merseyside [2006] EWHC 3041 the complaint attempted to assert that the Chief Constable pf Merseyside should be held vicariously liable for the actions of one of their police officers. In this case the police officer in question was off duty and parked in the vicinity of a night club when the claimant was carried out from the club severely intoxicated.

A first aider at the club expressed their concern about the claimants condition and the off duty officer informed the first aider that he would take the claimant to a police station. The officer told the claimant he was an off duty officer and invited her into his car where he showed her his police badge. The officer drove past several police stations and took the claimant to his home where he raped and indecently assaulted her and made a video film and computer stills of the assault. The officer pleaded guilty to rape and the indecent assaults.

The claimant in trying to bring an action against the Chief Constable submitted that the officer had been acting in the performance of his duty as a police officer and therefore the Chief Constable should be held vicariously liable. In his defence the Chief Constable argued that the officer had been using his uniform and position as a police officer as a camouflage to achieve his desire to assault vulnerable women. The Chief Constable also made the point that the fact that with the offender being a police officer with a uniform and a warrant card this had given him the opportunity to commit the assaults. At the time of the attack the officer had not been performing any function as a police officer but had been on the prowl for his own purposes.

The court agreed with the Chief Constable that despite the fact that the officer had used his position as a police officer to persuade the victim to get into his car that once inside the vehicle none of the actions of the police officer could be construed as being within the scope of his employment. In this case the court made the comment that T had been “on the prowl” looking for a vulnerable victim, off duty, not in his working area and sitting in his own private car. In the circumstances he had been “on a frolic of his own[16]”.

Following the decision above this would seem to suggest that in this particular case the courts would be likely to find that at the time of the offence the manager was on a frolic of his own. This would mean that the claimant would not succeed in an action against the company for vicarious liability for the actions of the manager.

By contrast in the case of AB v Nugent Care Society (formerly Catholic Social Services (Liverpool)) [2006] EWHC 3031 the court held the defendant vicariously liable for the assaults on the plaintiff. In this case the plaintiff was sexually assaulted by the head teacher at the school. The court held the defendant liable on the basis that they owed the plaintiff a duty of care to protect from the attack by the teacher by ensuring that those employed by the defendant did not have a tendency to commit such acts. This can be distinguished from the above case in that the offence occurred whilst the head teacher was actually working for the company at the time the offence occurred[17].

The outcome might have been different if the head teacher had committed the offence in his own time rather than whilst he was working for the company. A further reason for the courts decision in this case is that the head teacher was in direct contact with children and therefore the employers would have a duty to ensure that those employed by them did not have any criminal convictions. The head teacher should have revealed his convictions under the Rehabilitation of Offenders Act 1974; however, as the position involved direct contact with children then the employers should have used the enhanced disclosure requirement before employing him.

The conclusion that can be drawn from the above is that it is unlikely that the company would be held vicariously liable for the actions of the manager as at the time of the offence he could be regarded as on a folic of his own. The court are also likely to find that the manager was using his position to satisfy his own perverted desires as was the case with the police officer above. It is also unlikely that the court would hold the company liable for not checking the criminal record of the manager before employing him as there is no requirement to do so unless the occupation is likely to involve direct contact with children or vulnerable adults.

Bibliography

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Cooke, J, Law of Tort, 7^th Ed, 2005, Pearson Education

Elliott, C & Quinn, F, Tort Law, 2005, Pearson Education

Harvey & Marston, Cases & Commentary on Tort, 3^rd Ed, 1998, Pitman Publishing

Inns of Court Law School, Employment Law in Practice, 7^th Ed, 2006, Oxford University Press

Painter, R & Holmes, A, Cases and Materials on Employment Law, 2006, Oxford University Press

Rose, FD, Statutes on Contract, Tort & Restitution, 10^th Ed, 2000, Blackstone’s

Weir, T, A Casebook on Tort, 8^th Ed, 1996, Sweet & Maxwell