Therefore Ben is at liberty to pursue a claim against X Ltd. in tort for Amir’s harassment provided he can substantiate the requisite elements constituting harassment.
The fact that Ben complained to management in the past and after the incident in which he was locked in a store closet will not exempt X Ltd. from liability under the principle of vicarious liability. Despite a formal warning, the harassment continued. The fact is, an employer can be vicariously liable even if the employer is not aware of the harassment leading to psychiatric injury.
Since Ben can substantiate harassment for which the employer is vicarious liable under the House of Lords’ interpretation of the Protection from Harassment Act 1997 , Ben will have to prove that the harassment took place in the course of employment. An employer can only be held vicariously liable for the conduct of an employee during the course of employment. In this regard, the Salmond test is instructive. The Salmond test provides that:
An employer will be liable not only for a wrongful act of an employee that he has authorized, but also for a wrongful and unauthorised mode of doing some act authorised by the master. ...