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Jessica  Clough
Jessica Clough,
TRAINEE CHARTERED LEGAL EXECUTIVE
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Employers beware: a look at vicarious liability
09 March 2016

This week we take a look at the recent case of Mohamud v WM Morrison Supermarkets in which the Supreme Court found Morrisons vicariously liable for the behaviour of one of its employees.

The facts

Mr Mohamud wanted to buy some petrol at Morrisons. He asked the kiosk assistant, Mr Khan, if he could print some documents he had on a USB stick. Mr Khan refused and Mr Mohamud protested. In response, Mr Khan verbally abused and threatened Mr Mohamud and instructed him to leave. He followed Mr Mohamud back to his car and opened the passenger door to prevent him leaving. Mr Mohamud got out to shut the door, and was repeatedly kicked and punched in the head, by Mr Khan who told him to leave and never return.

Mr Mohamud alleged that Morrisons were vicariously liable, as Mr Khan’ employer, for his actions.

The law

An employer will be vicariously liable for the actions of its employee, if there is a “sufficiently close connection” between their employment and the wrongful act. The connection needs to be so close that it is just and reasonable to impose liability under the principle of social justice.

In deciding whether there is a sufficiently close connection the court will take into account the nature of the work the employee is employed to do, and the closeness of the employment in relation to place, time and causation of the incident. The Court takes a broad view of what can be considered “incidental” to an employee’s duties.

In cases of common law vicarious liability, as opposed to that arising under discrimination legislation, an employer cannot defend itself by saying that it took all reasonable and practical steps to prevent the employee from doing the acts complained of.

Whilst an employer can recover any damages it has to pay from the employee, this is rarely of use as the employee will be a “man of straw” and will be the reason why the claimant has sued the employer.

The case

The Court of Appeal found that Morrisons were not liable because Mr Khan’s job role was not sufficiently connected to his violent conduct, he was not required to “exercise authority over the customer” and “his instructions were not to engage in any form of confrontation”.

The Supreme Court reached the opposite conclusion and found Morrisons liable for Mr Khan’s acts.  They considered the test of “sufficient closeness” and asked:

  1. What is the nature of the job entrusted to the employee, in its broadest terms?
  2. Is there sufficient connection between the position the employee is employed in and their wrongful conduct in order to make it right for the employer to be held liable?

They found that he was employed to deal with customers and although his actions were “inexcusable” they fell “within the field of activities assigned to him”. As a result, they found an unbroken sequence of events culminating in the assault on Mr Mohamud and held his actions were sufficiently closely connected to his employment.

Summary

Although employers may hope that their employees might not go quite so far as to assault customers, this decision does demonstrate the potential vulnerability of employers to rogue employees who over step the mark. For employers the best method of defence is to ensure that employees are chosen properly and carefully and provided with sufficient and adequate training to deal with situations that may arise.

For a look at key employment legislative changes in 2016, please join us for our next webinar at 11am - noon on 17 March 2016.

For more information about the issues raised in this case and how they could effect you or to find out more about how the Employment team could help you please contact the employment group on 0118 952 7184 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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