Vicarious Liability and the Violent Employee

On 02 March 2016 the Supreme Court issued a unanimous decision in the case of Mohamud v Wm Morrision Supermarkets plc [2016] UKSC 11.

The late Mr Mohamud, who sadly died from an illness unrelated to the claim before the Supreme Court heard his appeal, had visited a petrol station belonging to the Respondent in Birmingham in 2008. The reason for the visit was to inquire whether it would be possible to print some documentation from Mr Mohamud’s USB stick.

One of the Respondent’s employees, Mr Khan, was working behind the counter of the petrol station at the time. When asked by Mr Mohamud whether printing facilities were available, Mr Khan responded by using foul, racist and threatening language and ordered Mr Mohamud to leave the premises.

As Mr Mohamud left the kiosk and returned to his car Mr Khan followed him and continued his threatening and abusive behaviour. Mr Khan’s behaviour escalated quickly into violence and Mr Mohamud was subjected to a serious assault on the forecourt of the petrol station. Throughout the altercation Mr Mohamud had done nothing which was considered to be abusive or threatening.

An action was raised for damages against the Respondent on the basis they were vicariously liable for the actions of their employee who assaulted Mr Mohamud. At both first instance and in the Court of Appeal it was held the Respondent could not be vicariously liable for the unprovoked attack as there was not a sufficiently close connection between Mr Khan’s employment and his actions.

On appeal to the Supreme Court Counsel for Mr Mohamud submitted that a new test for vicarious liability applying a broader approach ought to be considered, or alternatively that Mr Mohamud ought to succeed under the current test.

The court considered the issue was whether there was a sufficient connection between Mr Khan’s employment with the Respondent and his violent conduct in assaulting Mr Mohamud to establish liability.

The unanimous judgement of the Supreme Court was delivered by Lord Toulson. At the outset of the judgement it was recognised the law relating to an employer being held vicariously liable for the acts and omissions of their employees was a subject which had troubled the courts previously and past case law was not entirely consistent.

Having undertaken a detailed review of how the law of vicarious liability had developed, the Supreme Court rejected the submission that there ought to be a new test for vicarious liability.

The court held under the present law a court must consider two aspects in cases in which the vicarious liability of an employer is at issue:

  • Firstly the court must consider what is the nature of the wrongdoing employee’s job? This question is to be assessed broadly and will include an assessment of the functions and activities which the employee has been entrusted with by their employer.
  • Secondly, in reaffirming the test set out in the House of Lords decision in Lister v Hesley Hall Ltd [2001] UKHL 22, a court must then consider whether there was a sufficient connection between the position in which the employee was employed and the wrongful conduct (the close connection test).

Therefore in simple terms was Mr Khan’s violent and wrongful conduct sufficiently connected to his employment with the Respondent to establish liability on the part of his employer?

In upholding the appeal in this case, the Supreme Court’s decision was pronounced in relatively short compass. It held Mr Khan’s job was to attend to and serve customers. Whilst the way in which Mr Khan spoke to and acted towards Mr Mohamud in ordering him to leave the premises was inexcusable, it was nonetheless within the range of activities assigned to him by his employers.

The court rejected the argument that once Mr Khan left the counter to confront Mr Mohamud there ceased to be a significant connection between his employment with the Respondent and his conduct. The court considered it was an unbroken sequence of events. The fact Mr Khan had threateningly ordered Mr Mohamud to never come back to the premises on the forecourt was an order which purported to be related to his employer’s business, albeit a gross abuse of his position. Mr Khan’s motive was irrelevant despite the court commenting that it appeared obvious the attack was motivated by personal racism.

The Supreme Court’s decision might arguably be seen as widening the scope of claims which can be brought against employers for the actings of their employees. Whilst at first glance Mr Khan’s senseless actions appeared to be far removed from the scope of his employment, the court considered the wrongful conduct was sufficiently connected to establish liability on the part of his employer.

Cases of the type involving assaults carried out by employees are rare but it will be interesting to see how the Scottish Courts approach such cases in the future in light of the Supreme Court’s decision.

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