Posted By DG Richardson ladies / Gents I'm looking for some clarification on a point of law. If an employee neglected to inform their employer that they were on prescribed medication and this employee's condition led to an incident, ie, due to the medication, that caused this person or an other to be injured, would the employer be vicariously liable. thanks for any information Dave

Posted By Raymond Rapp Dave Difficult question. I think the best that I can suggest is that an employer may be vicariously liable. I suspect it would depend partly on whether the employer has ensured that they have implemented controls for such an occurrence. If the employer has, then it is possible the onus will lie with the employee. For example, within the ambit of the Transport at Work Act, the employer is required to show 'due dilligence' to alcohol and drug abuse. This in turn has prompted all rail operators to implement a D&A Policy, which also covers the scenario you describe. The policy should be brought to the attention to employees. Does that make any sense. Ray

Posted By anon1234 Think Bob has hit the nail on th ehead in his response

Posted By Phil Grace I do not think what is being talked about is vicarious liability. Vicarious liability is all about making one party responsible for the actions of another. It commonly arises when arises when an employee commits an act that injures another - employee or member of the public. It is the employee (who committed the act) that is liable but since the act was committed in the course of their employment the employer is made responsible. And remember that there is probably little point in suing the employee - a man of straw with little or no assets and no insurance...! So, vicarious liability is all about making someone responsible. In the circumstances described I think the employer is at fault e.g. for failing to carry out a proper risk assessment, for failing to appreciate that use of medicines/treatments by an employee could affect ability to work and not making this clear to the employee. I would say that an employer should make it clear to FLT drivers that use of some prescription medicines can "disqualify" them from driving/operating machinery and make it a condition that use of such medicines must be disclosed. Then one has to provide alternative employment for duration that medicine is taken...!

Posted By Anthony Rocheford This is not a simple yes or no situation as it relates to company policy and organisation culture. In the case of policy what does the employment contract and questions asked on the employment form e.g are you on on drugs, presription or other. If the employee says no and then is found to be on drugs prior to employment then the employee had lied on the application hence absolving the company. If however the drugs is as a result of an illness or other current circumstance then the isseue of the company's drug policy will be the focul point of the investigation. In the case of the organisational culture if the culture of the company is one that encourages employees not notifying of the feeling ill or taking of over the counter drugs such as neo-synepherin which can lead to central nervous system suppressant then the employer can be held responsible.

Posted By Ken Dickson Simple answer is yes. If the incident were serious enough, a prosecution would be probable. In a civil action the degree of contributory negligence on the part of the plaintiff would VERY significantly reduce any award. For the same reason, any sentence in a criminal prosecution would reflect the reckless action of the individual. Ken