Brink’s Global Services v Igrox
In Brink’s Global Services v Igrox  EWCA Civ 1207 the Court of Appeal again reviewed the difficult issue of when an employer is responsible for an employee’s unlawful acts. Brink’s sued Igrox because one of Igrox’s employees had stolen 15 silver bars. The job of the employee was to fumigate the container in which the silver was being transported and the enterprising employee took advantage of the opportunity this provided to help himself. The question was whether Igrox were liable for an act they had plainly not authorised.
The legal test is easily stated but has often caused much difficulty in its application. This basic rule is that an employer is liable if the act is committed in the course of employment. It will be in the course of employment if authorised by the employer. An employer will also be liable for an unauthorised act if the connection between the unlawful act and the job is so close that the act can be regarded as a method of carrying out the job, even if the method is improper.
Igrox argued that it was not appropriate to hold them liable because all that had happened was that the job had presented an opportunity to carry out a theft. In the words of some of the earlier cases the employee was on “a frolic of his own” and the mere opportunity was insufficient on its own to create liability.
Brink’s said that this argument ignored later legal developments when the courts, handling very sensitive and high profile cases of the sexual abuse of children, articulated very flexible variants of the test.
One was that the wrongful conduct was so closely connected with the job that it may fairly and properly be regarded a being done in the course of employment.
An alternative formulation was to say that the closeness of the connection was such that, looking at the matter in the round, it was just and reasonable to hold the employers liable.
The new approach prevailed in this case and Igrox were liable. The reality of these vaguely worded tests is that they give courts great scope to decide cases much as they wish. As one of the judges admitted “It is a difficult test to apply with any legal certainty”. This fact makes advising in these cases difficult.
The only real winners are insurers because the best advice to give employers about this risk is to make sure they are adequately covered.
First published in The Grapevine Magazine
Please contact Sejal Raja, firstname.lastname@example.org
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