Foul Play on the Forecourt – Serious Implications for Employers
It is not a new legal concept that if vicarious liability can be established an employer will be liable for the acts of its employees. However, the consequences for businesses are now potentially much more significant following the recent Supreme Court decision of Mohamud v WM Morrison Supermarkets plc (2016) UKSC 11. In reconsidering the test for vicarious liability in employment relationships, it overturned the Court of Appeal to hold that an employer was vicariously liable for a violent assault by one of its employees on a customer.
Mr Mohamud was assaulted and racially abused by Mr Khan, an employee of Morrisons, on the forecourt of the supermarket petrol station where Khan worked. When Mohamud brought a personal injury claim, it was found that Khan’s actions were beyond the scope of his employment and so Morrisons was not liable for them. The Court of Appeal agreed, on the basis that some factor going beyond interaction between employee and victim is required, such as an obligation upon the employee to keep order or an element of inherent risk of confrontation in the employment. The Court of Appeal’s decision was in line with other authorities on vicarious liability. However, Mohamud has now successfully appealed to the Supreme Court.
Lord Toulson, giving the unanimous judgment, identified the essence of the ‘close connection’ test for employer-employee vicarious liability as follows:
1. The nature of the job entrusted to the employee must be considered broadly; and
2. Whether there was a sufficient connection between the employee’s role and the wrongful conduct to make it right to hold the employer liable for the wrongdoing.
In this case, it was Khan’s job to attend to customers and respond to their enquiries. Whilst Khan’s conduct towards Mohamud was intolerable, it was within the “field of activities” assigned to him. Khan was attempting to remove Mohamud from his employer’s premises (albeit reinforcing his orders by violence) and in so doing was purporting to act on his employer’s behalf. Although it was a gross exploitation of his position, the Supreme Court considered that it was in connection with the business in which he was employed to serve and interact with customers. Morrisons entrusted him with that position and therefore Morrisons should be held responsible for Khan’s abuse of it.
Whilst the decision has not changed the law on vicarious liability, its implications are potentially far-reaching. Despite the fact that Khan had strict instructions from Morrisons not to leave his booth, and was certainly not authorised to carry out such an attack, he did so nonetheless, and the Supreme Court decided that vicarious liability can arise in such circumstances if the activities are integral to the business.
This could mean that an employee’s responsibility to deal with customers itself makes the employer liable for almost anything that the employee does to them. Even if a company trains its staff in relation to their handling of customers, or threatens staff with disciplinary sanctions, it may still be liable.
So where does this decision leave a particularly volatile employee if they are “connected” to other employees? This case suggests that if part of an employee’s role is to interact with other employees any treatment of them by that employee, however unwanted, dishonest or violent and notwithstanding any employee training that has been provided on the subject, would become the employer’s liability.
At first glance, this is an unexpected decision which may broaden the scope of vicarious liability to its very limits. However, it is also important to note that the approach taken by the Supreme Court was to contemplate what was just in the circumstances, and it was keen to highlight that each court will need to evaluate the specific facts in each case. Even so, the danger from an employer’s perspective is that any link to an employee carrying out his “field of activities” is likely to be enough to establish that the employer should be held liable.