The Supreme Court recently delivered its decision in a case which will have significant consequences for employers potential liability for the actions of its employees within the workplace. In A Mohamud v WM Morrison Supermarkets plc, an employer was found vicariously liable for an assault by one of their employees on a customer.
Mr Mohamud had entered a petrol station kiosk owned and operated by Morrisons to ask one of its employees if he could print documents on Morrisons office equipment located in the kiosk. The employee to whom this request was made, Mr Khan, responded rudely and with racially offensive language. He subsequently left the kiosk in pursuit of Mr Mohamud, followed him back to his car, opened the passenger door of the vehicle and told Mr Mohamud not to return. Upon being asked to leave Mr Muhamud’s vehicle, matters quickly escalated further when Mr Khan punched Mr Mohamud and then, when Mr Mohamud got out the car to close the passenger door, Mr Khan began punching and kicking him, despite instruction from his supervisor to stop.
Morrisons were found not to be liable for Mr Kahn’s actions at first instance and at a first appeal hearing heard by the Court of Appeal, who found that the actions of Mr Khan were outside of the scope of his employment and the fact the incident happened on work premises and in the course of Mr Khan serving Mr Mohamud as a customer was not sufficient to hold Morrisons vicariously liable.
The Supreme Court has now overturned this decision. They confirmed the existing test for imposing vicarious liability, which is:
- Is there a sufficiently close connection between the employment and the wrongful act?
- If so, would it be just and reasonable to hold the employer vicariously liable?
The Court clarified that there are two considerations to be made. Firstly, to consider the ‘field of activities’ assigned to the employee or the nature of their job, which is to be considered broadly, and secondly where there is a sufficient connection between this and the wrongful act to make it just that vicarious liability is imposed.
The Court held that Mr Khan had been acting in connection with his employment, in that his exchange with Mr Mohamud had occurred as a result of his being employed to serve customers in the petrol station. He threatened Mr Mohamud not to return to the petrol station and in doing so purported to act on behalf of his employer. His actions were in response to Mr Mohamud’s inquiry as a customer and the chain of events was not broken by Mr Khan choosing to leave the kiosk. His actions were inexcusable and a gross abuse of his position, but connected to his employment nonetheless and on that basis Morrisons were vicariously liable for his assault on Mr Mohamud.
This case is a stark warning to employers that they may be held liable for acts of their employees which they would never instruct or condone. The Supreme Court stated that Morrisons had entrusted Mr Khan with his position and could therefore be held liable for his abuse of it. It is arguable that this case extends the scope of what is deemed to be a “close connection”. In previous similar cases employers have relied on the position that the employee was on “a frolic of their own”: carrying out acts for their own personal reasons which are beyond the scope of their employment and which had not been instructed by the employer. The Supreme Court concluded that while the motivation for Mr Khan’s attack on Mr Mohamud was likely to have been his own racial prejudice, his motive was irrelevant and his conduct was sufficiently connected to his employment as to make it just to hold Morrisons liable. It is also worthwhile highlighting that as a result of his actions, Morrisons had (not unsurprisingly) already dismissed Mr Khan on grounds of gross misconduct.
Vicarious liability is very fact specific and this decision does not mean that employers will be held liable in every case of assault by an employee. However, it is worth noting that this case does appear to widen the circumstances in which an employer may be found to be vicariously liable for its employees’ acts. While this case dealt with the assault of a customer by an employee, the decision is likely to have consequences in respect of any wrongful acts of an employee where the two stage test is satisfied. For example, where an employee uses their employer’s social media channels to criticise a suppliers services or product, causing that supplier a loss, then the employer may be vicariously liable for that loss and be required to pay the supplier damages.
Whilst the situation in Mr Mohamud’s claim was extreme, employers would be well advised to consider how to deliver robust training and impress good practice standards upon employees, as well as making clear the consequences of departing from them.
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