Vicarious liability of employers

There have been a number of press articles recently claiming that the Supreme Court has sent employers “a wake-up call” having broadened the law which holds employers vicariously liable for the acts of their employees who commit crimes at work. This principle applies equally to co-workers who fight at work resulting in personal injury. We take a look at this case and the implications for employers.


What happened in this case?

In Mohamud v WM Morrison Supermarkets plc, Morrisons were sued by Mr Mohamud after he was assaulted by one of their petrol kiosk staff, Mr Khan. Mr Khan’s job was to see that the petrol pumps and kiosk were kept in good running order and to serve customers. In brief, Mr Mohamud entered the petrol kiosk and asked if someone could print off some documents he held on a USB stick. Mr Khan told him they didn’t provide this service in an offensive way. Mr Mohamud protested at the language used which prompted a foul, racist and threatening tirade from Mr Khan who ordered Mr Mohamud to leave. He left the kiosk and was followed by Mr Khan who subjected Mr Mohamud to a brutal assault on the forecourt. Mr Khan carried out the assault whilst ignoring instructions from his supervisor to stop. Mr Mohamud brought a personal injury claim against Morrisons.

In order to succeed, Mr Mohamud had to show that Morrisons were vicariously liable for Mr Khan’s actions. Vicarious liability requires a relationship between the defendant and the wrongdoer (here, the employment relationship) and a connection between that relationship and the wrongdoer’s act, so that it is fair that the defendant is held legally responsible for the wrongdoing.

At first instance, the court expressed great sympathy for Mr Mohamud but concluded that Morrisons was not vicariously liable for Mr Khan’s unprovoked assault. He found that Mr Khan’s job did not extend beyond serving and helping customers. Therefore there was not a sufficiently close connection between the conduct and what he was employed to do. The court was also persuaded by the fact that Mr Khan had made a positive decision to follow Mr Mohamud out of the kiosk in spite of the instructions given to him by his employer. The Court of Appeal agreed. Mr Mohamud’s representatives appealed and asked for a different legal test to be applied.

The Supreme Court reviewed all the authorities for vicarious liability and concluded that there was no need for a new legal test, particularly in the vague terms requested. The Supreme Court also took into account the social policy grounds for vicarious liability, for example the extension of scope to employers of those who had abused children in the course of their employment (which could in no way be described as within their job description). After reviewing all the facts, the Supreme Court’s view differed from previous decisions. They found that it was Mr Khan’s job to attend customers and respond to their inquiries. His conduct was inexcusable but within the “field of activities” assigned to him. They disagreed that Mr Khan had metaphorically taken off his uniform when he followed Mr Mohamud out of the kiosk and took into account that Mr Khan continued to tell Mr Mohamud never to come back to the petrol station. Therefore, the Supreme Court found a sufficiently close connection with the business of serving customers. They found that Morrisons should be held responsible for its employee’s abuse of position. There was no change in test or scope, merely a different interpretation of the same facts.


What should employers do?

This case is a reminder that employers can be held responsible for their employee’s actions, even where their employees are acting outside the scope of their normal duties. Employers should ensure that their employees are fully aware of the standards expected and that customer facing employees have appropriate training in dealing with difficult customers (although there is no suggestion that Mr Khan was a difficult customer here). Also, employers need to take prompt disciplinary action against any employees guilty of violent or threatening behaviour at work before it escalates into something more serious.

If you are facing accusations of vicarious liablity, you need expert and specialist legal support. Analysis Legal is one of the best employment law firms in Stockport, and we have years of experience in defending cases of vicarious liability for employers all across the North West and the UK.

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