14

I WFH and today I had a meeting that ran way over time and I had to pick up my kid from school. I didn't want to miss the rest of the discussion and wanted to push back on one issue, so threw my laptop on the front seat, turned on the hotspot and continued the meeting(and before anyone comments, no I didn't use it while driving, it was hands free with a headset, I just don't have Teams on my phone). And this is not uncommon with my team. Pre Covid, we'd do it occasionally, when you're stuck in unexpected traffic and need to join an important morning meeting, but it's become a lot more common.

On the way back, I started wondering: if I hit somebody, would my employer be liable, since I was technically "at work" at the time of the accident? Or is it so out of scope of my responsibilities that it'd be all on me.

Improve this question
4
  • 3
    Note that the arguments against driving while talking on the phone are at best partially migitated by using a head set. Your brain can't focus both on traffic and on your phone conference at the same time, regardless of what your hand are doing.
    – quarague
    Commented Jun 15 at 9:40
  • 1
    @quarague wouldn't that be true of conversation with passengers in the car as well? Or even just listening to the radio?
    – Ryan_L
    Commented Jun 15 at 16:56
  • 1
    @Ryan_L: Not according to the research, e.g. apa.org/pubs/journals/releases/xap-14-4-392.pdf
    – Oddthinking
    Commented Jun 16 at 7:30
  • @quarague tldr passengers can pause the conversation when they see the road getting dangerous and you can tune out the radio at those moments, but you can't if it's a remote conversation. I wasn't implying it's safe to drive like that, but sometimes it's unavoidable and I was curious about the legal implications.
    – Eugene
    Commented Jun 16 at 17:55

4 Answers 4

Reset to default
28

Vicarious liability generally needs to pass the so-called "close connection" test, meaning that the act in question must be sufficiently related to the conduct that the employer has actually employed you to do. For example, a truck driver who hits another car on their delivery route almost certainly does so in the normal, expected, and required duty they have of driving a truck, so their employer would likely be vicariously liable.

Here, driving your car is not one of your job duties or in any way connected to your responsibilities or the company's expectations. The act which make you liable really has nothing to do with any aspect of your job - nobody told or expected you to drive (and indeed they'd probably prefer you weren't driving during meetings), so I would expect this to fail the "close connection" test.

Your employer does not automatically become vicariously liable for any and all things you might do while you happen to be on a work call. As another example, consider that a construction company might be vicariously liable if their employee runs someone over with a bulldozer on the job. Your desk job employer would not be liable if you decided to take a joyride on a bulldozer during a call and injured someone in the process.

Improve this answer
4
  • 7
    Some states use a test broader than the "close connection test" called the "frolic and detour" test. This asks if the employee was embarking on a frolic and not merely a detour from their job related activities. See law.cornell.edu/wex/frolic_and_detour citing O'Connor v. McDonald's Restaurants (Cal. App. 1990) law.justia.com/cases/california/court-of-appeal/3d/220/25.html
    – ohwilleke
    Commented Jun 13 at 21:13
  • 3
    OTOH, in practice, the company may prefer to pay up from their business insurance rather than risk long and expensive litigation over liability. But a lot will depend on circumstances. (The victim may also prefer to sue a rich company with liability rather than an individual who may have just been fired for gross negligence.)
    – Stuart F
    Commented Jun 14 at 9:26
  • Accepting this answer, since it's both good and the only one about the US, as was specified in the OP lol
    – Eugene
    Commented Jun 14 at 16:31
  • 3
    Re: "nobody told or expected you to drive (and indeed they'd probably prefer you weren't driving during meetings)": True, but if the accident was caused by driving during a meeting, then it was also caused by taking a meeting while driving. Judging from the OP, the company did expect the employee to take the meeting, despite knowing that the employee was driving.
    – ruakh
    Commented Jun 14 at 19:46
4

I can't find anything on point in the UK, but I suspect that here the employer might find themselves liable under health and safety law, on the grounds that the company is forcing its employees to act in an unsafe way. One could argue that in your circumstances picking up your children was non-negotiable and you had planned appropriately, but the overrunning meeting forced you to choose between neglecting your work (attendance was effectively mandatory) or driving at increased risk. The fact that this is generally tolerated by the company would be an important point: it wasn't just you taking a risk by yourself.

The company's defence could be that they were unaware of this trend and/or their existing policy documents mentioned that this should not be done. Also in the web page I linked to it says that occasional use of hands-free for calls is acceptable. They might also argue that you weren't driving as part of your job, but AIUI that isn't particularly relevant given the other facts.

Improve this answer
2

Probably

For an employer to be held liable for the tort of an employee the common law requires that the tortious act of the employee be committed in the course or scope of the employment.

It is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment … the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment”

CCIG INVESTMENTS PTY LTD (ABN 57 602 889 145) v SCHOKMAN [2023] HCA 21

Participation in the meeting is within the scope of your employment, so any tort you commit while doing that is in the course of your employment, and the employer is vicariously liable. If the employer could demonstrate that you have been explicitly told/trained not to drive while holding meetings illegally on your laptop, then they have a defence that that specific combination was not in the course of your employment - i.e. having meetings is, having meetings on your laptop while driving isn't.

In general, illegality by the employee does not break the vicarious liability; after all, torts are illegal. Even criminality does not necessarily break it; employers have been held vicariously liable for sexual abuse committed by employees if the employment could provide circumstances for the commission of the offence Prince Alfred College Incorporated v. ADC [2016] HCA 37.

While most vicarious liability claims are common law based, there are some statutory provisions that narrow or broaden the scope.

For example, under s 106 of the Sex Discrimination Act 1984 (Cth), an employer is liable for the acts of its employees ‘in connection with their employment’ unless the employer establishes it took all reasonable steps to prevent the employee engaging in that conduct.

The phrase ‘in connection with their employment’ is broad – broader, in fact, than ‘in the course of their employment’.

Improve this answer
5
  • 1
    So you can get away with theft, murder, etc. just by joining a work meeting from your phone while you commit the crimes? Maybe even bonus points if you turn on the camera so that there are witnesses that it is your employer's fault? Sounds like a too powerful loophole...
    – wimi
    Commented Jun 14 at 6:44
  • 1
    No, you can’t. It’s always the employee’s responsibility but can additionally be the employer’s. Interesting if the employee caused you damage, ought to pay, but has no money, and the employer has. And the murder is most likely not work related. I could just about imagine that a security guard or a bouncer could commit a work related murder, they would still go to jail for murder.
    – gnasher729
    Commented Jun 14 at 8:20
  • 2
    The first case you cite found the employer not liable because the act, although committed on company property by an employee who was required to be there, was not "authorised, in any way required by, or incidental to, his employment." It seems clear that driving is not at all within the OP's "scope of employment" - it has nothing to do with "what the employee was actually employed to do and held out as being employed to do". I don't expect the employer has to explicitly enumerate and bar all unrelated tortious activities the employee could possibly commit while working to avoid liability.
    – Nuclear Hoagie
    Commented Jun 14 at 14:04
  • 3
    The notion that "any tort you commit while [on a work call] is in the course of your employment and the employer is vicariously liable" seems very far-reaching. Seems crazy to think that if the OP decided to go hunting during an earnings call and shot someone that the employer would be liable, or that they could drive drunk or without a license and make their employer liable just by popping in an earbud. It's impossible to list all the things that aren't in an employee's scope of employment.
    – Nuclear Hoagie
    Commented Jun 14 at 14:20
  • @NuclearHoagie, in the example, the employee isn't driving "within the scope of employment", but attending a meeting. The employee needs to be driving for non-employment reasons. I suppose if you could show that an employee needed to be hunting at some time the company also scheduled a meeting... but I expect that would be difficult. The issue here is that it is problematic for the employee to defer driving until some other time, and the company "required" them to attend a meeting in the knowledge that they would be driving at the same time.
    – Matthew
    Commented Jun 17 at 0:56
1

"Work From Home" does not mean "work from whereever, you decide". It means "from home", literally. Where "home" is, is written down in your (mandatory) written contract. Because that is your place of work, it determines which federal state you work in which in turn determines, among a million other details, obvious differences like taxes and public holidays. You cannot just decide that you'd like to have the day off and drive to another federal state where they have a public holidy today. Work from home is from home. And nowhere else.

While no employer in their right mind would double check that, because as long you you do the job, why would they expend extra resources on it, if it comes to inconvenience or even costs, you can be pretty sure they will hold you to your contract. Especially insurances will sniff out every little thing that isn't in their policy and you being in your private car on a private trip while you should be in your office at home at your desk according to your contract is not going to pass any test.

If you are travelling for work, either to work, from work, between workplaces, or between workplace and customers, you are covered by various laws and insurances. But leaving your designated workplace, against contract and policy, for a private trip in your private car, is something you would probably get fired or at least reprimanded for, on top of whatever other suit you can expect.

Improve this answer
5
  • 3
    Note that there are also "mobile work" contracts that specify things like "inside germany" or so, where you can really work from wherever you feel like it, as long as you meet your goals.
    – PlasmaHH
    Commented Jun 14 at 7:11
  • While true, driving in your private car for a private reason would still not be considered covered by for example workplace injury insurance, because that is not part of "mobile work", the private trip had nothing to do with work. The same way that if you slip and fall on your way to the next room to get a folder for work, you are covered, if you go to the next room to get a piece of paper for private reasons, you are not.
    – nvoigt
    Commented Jun 14 at 9:13
  • 1
    Hmm, I'm not so sure about that. Sure, the employer's insurance would try to use this argument to get off the hook, but that does not mean that the employer themselves would not remain liable. If they were aware that OP was working from their car, and this is not even uncommon in their org, it could easily be construed as silent approval independently of what the contract says.
    – xLeitix
    Commented Jun 14 at 10:53
  • 1
    What I'm trying to say is, you are of course correct that not being at your designed place of work can get you reprimanded or fired, but since that does not seem to happen in OP's org, I doubt the company can then use this argument to claim that OP wasn't actually working.
    – xLeitix
    Commented Jun 14 at 10:55
  • @xLeitix If the employer has read the fineprint of their insurance, they will inform their emplyoyees in writing that working while driving is unaccaptable.
    – Hagen von Eitzen
    Commented Jun 16 at 10:56

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .