Liable for attack
Labour & European Law Review Weekly Issue 465 13 April 2016
For an employer to be found vicariously liable for the actions of their employee, there has to be a sufficiently close connection between the wrongdoing and the job the employee was employed to do. In Mohamud v WM Morrison Supermarkets plc, the Supreme Court held that Morrisons was vicariously liable for a vicious attack carried out by one of their employees on a customer.
Mr Mohamud, who was of Somali origin, went into the kiosk at a Morrison’s petrol station where customers pay for their petrol. He asked if he could print off some documents from a USB stick, but Mr Khan (one of the employees present) refused. Mr Mohamud protested about the rude way in which Mr Khan had spoken to him, but this just resulted in a further tirade of foul, racist and threatening language from Mr Khan.
Mr Mohamud went back outside to his car but before he could drive off, Mr Khan opened the passenger door, told him never to return and then punched him in the face. Mr Mohamud got out to close the passenger door when he was again punched in the head. He was then knocked to the floor and subjected to a serious attack, involving punches and kicks. During this time, Mr Khan ignored his supervisor’s instructions to stop the attack.
Mr Mohamud brought proceedings against Morrison’s on the basis that the company was vicariously liable for the actions of its employee.
Decisions of lower courts
The trial judge dismissed the claim on the basis that there was not a sufficiently close connection between what Mr Khan was employed to do and his conduct in attacking Mr Mohamud for Morrison’s to be liable.
The Court of Appeal upheld that decision. Mr Mohamud appealed, arguing that the “close connection” test was not the appropriate standard to apply and that, even if it was, his claim should have succeeded.
Decision of Supreme Court
Allowing the appeal, the Supreme Court said it had to consider two questions when deciding whether the employer should be held liable for the actions of their employee. The first was to look broadly at the nature of the job (the “field of activities”) that the employee was employed to do; and the second was to decide whether there was a sufficient connection between that job and the wrongful conduct.
Applying that test here, it was Mr Khan’s job to attend to customers and respond to their inquiries. As such, interacting with customers was within the “field of activities” assigned to him by his employer. In this case, that started when Mr Mohamud entered the kiosk and Mr Khan responded abusively to his question.
There then followed an unbroken sequence of events when Mr Khan followed Mr Mohamud onto the forecourt. The connection between the field of activities assigned to Mr Khan and his employment did not cease the moment he came out from behind the counter and followed Mr Mohamud onto the forecourt. He did not metaphorically “take off his uniform”. Rather he was following up on what he had already said. Then, when Mr Khan followed Mr Mohamud to his car and told him not to come back to the petrol station, that was not something personal between them, but an order to keep away from his employer’s premises. In giving the order he was purporting to act in relation to his employer’s business.
The Court therefore allowed the appeal.
This case does not change the law but it will make it easier to argue an employer is responsible for acts of their employees. There will always be grey areas so the illustrations and examples in the Supreme Court decision are useful to understand the meaning of “close connection” between the employee’s work and the wrongdoing.