Negligent hiring and negligent entrustment are different in two ways, though an employer could be guilty of both at one and the same time. This is because negligent entrustment, when applied to an employer, always also involves negligent hiring.
Negligent entrustment is the provision of an instrument to an individual when you know that that the individual is liable to injure or otherwise harm others by use of that instrument. To avoid negligible entrustment you should make sure that you are unaware of any reason why the person should injure a third person through use of the instrument provided, or take reasonable steps to make sure that this could be not be expected to occur.
For example, if your neighbour’s car is in the garage getting its regular service, and he asks you if he can borrow you car to pick his kids up from school, you will likely say yes. If he then goes on to cause an accident, and it is subsequently found out that he had two convictions for careless driving just before he moved to your locality, it would be unlikely that you would be found responsible for the accident. If you had known about the convictions, you would have been guilty of negligent entrustment since you had entrusted your neighbor with your car, the instrument that was used in the accident. However, it is unlikely that you would be expected to have carried out a criminal record or even a driving record check on your neighbor before lending him your car.
On the other hand, if you hired that neighbour in your company and provided him with a company delivery vehicle and your neighbor subsequently caused an accident while making a delivery, you would likely be guilty of negligent entrustment and also of negligent hiring. As an employer, you would have been expected to carry out sufficient pr-employment checks to make sure that your neighbour would not be liable to cause injury to anyone while doing the job he was hired for.
You would be expected to carry out criminal record checks in the counties indicated by his residential record, and, since the job involved driving, a complete check on his driving records including any convictions or suspensions. Had you done so, you would have discovered his driving convictions and would have been expected not to employ him.
The fact that you failed to do so makes you guilty of negligent hiring, and the fact you supplied him with, or entrusted him with, the vehicle or instrument that was involved the accident, then you are also guilty of negligent entrustment. Negligent entrustment in employment generally always involves negligent hiring.
However, if you, as a neighbor, had known that the person involved was a reckless driver, and still entrusted him with your car, you would have been guilty of negligent entrustment, but not negligent hiring, since you did not hire him.
Pre-employment screening of all prospective employees is essential. You must demonstrate that you have taken all reasonable steps to ensure that an employee will not injure anybody else while in your employment. These steps include criminal records checks, checking that their residential records are complete, past employment records should be checked and any references provided followed up. You should also be aware of any references not provided from stated employment, or any employment gaps.
Some job-specific checks may have to be made such as sex offenders registers and driving records. If any specific instruments, or tools, are to be provided in the employment relevant checks may be necessary. Nevertheless, many employers still fail to adequately protect against negligent entrustment.
Take the case of a trusted employee who has been with you for a number of years, and has never put a foot wrong. Somebody who has never lifted a finger to harm anybody and has never been a minute late in all the years he has worked for you. Then a position becomes vacant that appeals to him. A driving vacancy, let’s say, that can earn him a bit more money. He applies for it and you have no hesitation giving it to him since he has been a model employee.
However, what you don’t know, because you have never had the need to know, is that he goes mad behind the wheel. He has had a number of dangerous driving convictions over the past two or three years that he has kept quiet about, and on the first day slams his van into a cab, killing the driver and badly injuring three passengers. Who is most at fault? You are. You are guilty of both negligent hiring and negligent entrustment.
You may not have been negligent in the initial hiring, but when the employee changed jobs you should have carried out full pre-employment screening for his suitability as a driver. This would have revealed his convictions and you would not have given him the job. You would have saved yourself the millions in damages that the accident is going to cost you.
So beware when an existing employee changes jobs. There might be a requirement in the new job that will necessitate employment checks. A change of job should be treated as new employment, not simply a transfer from one department to another.