Business owners warned: you could be liable in negligence for the actions of self-employed workers as well as employees

The recent case of HHJ Harrison in Breakingbury -v- Croad (2021) saw the owner of a dental practice defend a negligence claim on the basis that dentists at his practice were self-employed Associates. The defence failed.

There are two aspects of the case which the prudent business owner should bear in mind. First, despite the perceived relationship between the practice and its staff, contractors may in fact be considered ‘employees’ for the purposes of establishing vicarious liability; the long-established basis upon which Claimants can sue businesses directly for harm caused by the negligent acts of employees.

The dentists’ relationship with the practice in the Harrison case was found to be ‘akin to employment’ because the court found, amongst other factors, clients made payments to the practice directly, were not able to choose which dentist they saw and did not necessarily see the same dentist each time they visited. Facts which no doubt apply to many similar professional services businesses across the UK.

Secondly, the judgment recognised a non-delegable duty of care which creates liability regardless of the employment status of practice staff. This duty was established by the Supreme Court in Woodland -v- Swimming Teachers Association (2014) AC 537 and places greater obligations on business owners to ensure that everyone working in or for a business is a reasonably competent self-employed or external contractor.

This means that, in practice, a business owner is not able to avoid liability to its customers simply by shifting the responsibility to self-employed staff or sub-contractors. Instead, the training and development needs of all staff must be monitored and addressed, rather than relying on individuals to keep their skills up-to-scratch, even if their legal relationship with you is not that of a traditional employer/employee.

The information contained in this article provides a general overview of the current position in relation to the subject matter.  It does not constitute legal advice and should not be relied upon in relation to any specific legal problem