When are employers liable for the acts of contractors?

Background

In the case of Burger v JD Wetherspoon plc, a customer suffered serious injuries after being assaulted by two door supervisors outside a pub. The door supervisors were employed by an independent security company that had been engaged by JD Wetherspoon to provide security services.

The security company had since entered liquidation, leaving the claimant seeking compensation from Wetherspoon on the basis that it was vicariously liable for the actions of the door supervisors.

Decision

The Court of Appeal held that Wetherspoon was not vicariously liable.

The court emphasised that the starting point is to determine whether the workers were employed by a genuine independent contractor carrying on its own business. If they were, the business engaging that contractor will not normally be liable for their actions.

The security company in this case remained responsible for recruiting, managing and directing its employees. It determined staffing levels, supplied the uniforms, retained day-to-day control over the door supervisors and was contractually responsible for their actions. Although the security services benefited Wetherspoon and were integral to the operation of the pub, that was not enough to make Wetherspoon responsible for the conduct of the contractor's employees.

The Court of Appeal also rejected the argument that Wetherspoon had become the door supervisors' "temporary employer". That can occur where control over workers effectively transfers from the contractor to the client, but the court found nothing approaching that level of day-to-day management here.

Learning points for employers

The decision highlights that businesses are generally not liable for the actions of genuine independent contractors, even if their work is integral to the business or closely aligned with employees. However, courts will assess the practical day-to-day relationship. If a business exercises significant control over a contractor's staff or integrates them into its workforce, it risks being deemed their temporary employer and liable for their actions.

It is also important for employers to distinguish this decision from the upcoming third-party harassment provisions under the Employment Rights Act 2025, which are due to come into force in October 2026. Those provisions concern a different type of liability. They will make employers liable, in certain circumstances, where their employees are harassed by third parties, such as contractors, clients, customers or service users, during the course of their employment.

Although this case suggests that employers will not usually be vicariously liable for the wrongful acts of an independent contractor towards others, that does not mean employers can ignore the conduct of contractors towards their own workforce. Employers will be under a positive duty to take all reasonable steps to prevent third-party harassment of employees, including by contractors where appropriate. This is likely to require suitable policies, training, reporting procedures and appropriate action where concerns are raised. Failure to take all reasonable preventative steps could expose employers to liability, even where the harasser is not their employee.

For more information or advice, please get in touch with Sharmin Chowdhury in our Employment team.