The Court of Appeal has confirmed that a business will not usually be vicariously liable for the actions of a true independent contractor. In Burger v JD Wetherspoon plc [2026], the Court found that JD Wetherspoon plc was not vicariously liable for the actions of door staff supplied by an independent contractor, clarifying the key principles that apply when determining vicarious liability in the context of third parties.
Background to the claim
Mr Burger was seriously assaulted by two door supervisors outside a JD Wetherspoon pub and required surgery. The door staff had been supplied by Risk Solutions BG under a contract for services. Under that agreement, Risk Solutions was responsible for allocating, managing and controlling the door staff.
At first instance, Mr Burger succeeded in his claim against Wetherspoon on the basis that it was vicariously liable for the actions of the door staff. That decision was overturned by the Court of Appeal.
What is the test for vicarious liability?
To establish vicarious liability, two elements must usually be satisfied:
- The relationship between the defendant and the person who committed the wrongful act must be one of employment or sufficiently “akin to employment”; and
- There must be a sufficiently close connection between the person who committed the act and their duties
When applying this test, courts consider the reality of the relationship between the parties. Relevant factors include how the individual is paid, how integrated they are in the business, and the degree of control exercised by the business.
What did the Court of Appeal decide?
The Court of Appeal held that the correct starting point was the contractual relationship between Wetherspoon and Risk Solutions.
The contract made clear that Risk Solutions managed and controlled its security staff, required them to wear uniforms bearing its logo, and indemnified Wetherspoon against liabilities arising from their conduct. There was nothing to suggest that the practical working arrangements differed from the contractual position.
The Court therefore concluded that Risk Solutions was a genuine independent contractor carrying on its own business. In those circumstances, there was no need to go on to consider whether the relationship was “akin to employment”, as vicarious liability does not extend to the acts of true independent contractors carrying on their own business.
What does this mean for businesses?
Although this was not an Employment Tribunal decision, it provides useful guidance for businesses that outsource services.
The judgment confirms that a business will not usually be vicariously liable for the actions of a genuine independent contractor, provided that both the written agreement and the practical reality demonstrate that the contractor is operating its own independent business.
In practice, the contract is critical, but it must accurately reflect the day-to-day arrangements. Businesses should therefore ensure that contractor agreements clearly allocate responsibility, are kept up to date, and are followed in practice.
What if the incident involved sexual harassment?
It is worth noting that, had this been an incident of sexual harassment towards staff, the outcome may have been different because, under the Employment Rights Act 2025, employers may be liable where a third party (such as a client, customer or contractor) sexually harasses an employee. Employers can only defend this claim if they can demonstrate that they took “all reasonable steps” to prevent the sexual harassment from taking place. This means employers should not rely on independent contractor status alone and should ensure they have appropriate policies, risk assessments, reporting routes and training in place.
Need advice on vicarious liability or contractor arrangements?
If your business uses contractors or outsourced services, it is worth reviewing your contracts, policies and working practices to ensure they reflect both the legal position and the practical reality.
For advice on vicarious liability, contractor arrangements, workplace policies or any other employment matters, we’re here to help. Get in touch with Natalie Hami Dindar at NatalieHamiDindar@schofieldsweeney.co.uk.